Copy ^ 



Horticultural 
Statutes of 
(California 



With 



Court Decisions and Legal 
Opinions Relating Thereto 



Compiled by the 
State Board of Horticulture 



CALIFORNIA'S 



HORTICULTURAL STATUTES 



COURT DECISWNS AND LEGAL OPINIONS 
RELATING THERETO. 



Compiled by the 
STATE BOARD OF HORTICULTURE. 




SACRAMENTO: 

A. J. JOHNSTON : : : superintendent state printing. 

1901. 



CALIFORNIA STATE BOARD OF HORTICULTURE. 



ELLWOOD COOPER President... Santa Barbara 

Commissioner for the Los Angeles District. 

FRANK H. BUCK Vice-President Vacaville 

Commissioner for the Napa District. 

H. WEINSTOCK Treasurer Sacramento 

Commissioner for the Sacramento District. 

RUSS D. STEPHENS Auditor Sacramento 

Commissioner for the State at Large. 

THOMAS A. RICE ..El Rio 

Commissioner for the State at Large. 

THOMAS A. HENDER Sonora 

Commissioner for the El Dorado District. 

A. C. EISEN Fresno 

Commissioner for the San Joaquin District. 

A. B. CASH Santa Clara 

Commissioner for the San Francisco District. 

W. J. HOTCHKISS - Healdsburg 

Commissioner for the Sonoma District. 



JOHN ISAAC Secretary 

Office; State Capitol, Sacramento. 

ALEXANDER CRAW ...Quarantine Officer and Entomologist 

Office: Clay Street Dock, San Francisco. 

GERTRUDE BIRD Clerk 



OFFICES: 
State Capitol, Sacramento. 
Branch Office, Clay Street Dock, San Francisco. 



By'^-^^^' 



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CONTENTS. 



Page. 
AN ACT TO CREATE AND ESTABLISH A STATE BOARD OF 

HORTICULTURE 5 

LAW RELATING TO COUNTY BOARDS OF HORTICULTURE... 10 

HORTICULTURAL QUARANTINE LAW 13 

COURT DECISIONS AND LEGAL OPINIONS ON THE HORTI- 
CULTURAL laws- 
Horticultural Law Constitutional — Opinion of Attorney- 
General G. A. Johnson 16 

Appointment of County Boards Mandatory — Decision of 

Superior Court of Sonoma County 17 

Enforcement of the Horticultural Quarantine Regulations — 

Decision of Superior Court of Los Angeles County 20 

Constitutionality of Horticultural Liens — Decision of 
Supreme Court in "County of Los Angeles vs. Spencer 

ET al." 26 

The Riverside Case— "County of Riverside vs. Butcher" 31 

Complaint 31 

Demurrer 35 

Judgment on Demurrer 36 

Decision of the Supreme Court 37 

Powers OF Horticultural Commissioners Defined 40 

Opinion of the Superior Court of Tehama County 40 

Findings of Fact and Conclusions of Law of the Judge of the 

Superior Court of Tehama County . 50 

Powers of County Horticultural Commissioners and State 
Quarantine Officer— Opinion of Attorney-General Tirey 
L. Ford... 53 



HORTICULTURAL STATUTES OF 
CALIFORNIA. 



An Act to create and establish a State Board of 
Horticulture. 

(Approved March 13, 1883; amended by an Act approved March 8, 1889.) 

The People of the State of California, represented in Senate and 
Assembly, do enact asfolloios: 

Section 1, There shall be a State Board of Horticulture, 
consisting of nine members, who shall be appointed by the 
Governor; two from the State at large, and one from each of 
the seven horticultural districts, which are hereby constituted 
as follows: 

First — The Sonoma District, which shall include the counties 
of Sonoma, Marin, Lake, Mendocino, Humboldt, Del Norte, 
Trinity, and Siskiyou. 

Second — The Napa District, which shall include the counties 
of Napa, Solano, and Contra Costa. 

Third — The San Francisco District, which shall include the 
City and County of San Francisco, and the counties of San 
Mateo, Alameda, Santa Clara, Santa Cruz, San Benito, and 
Monterey. 

Fourth — The Los Angeles District, which shall include the 
counties of Los Angeles, Ventura, Santa Barbara, San Luis 
Obispo, San Bernardino, and San Diego. 

Fifth — The Sacramento District, which shall include the 
counties of Sacramento, Yolo, Sutter, Colusa, Butte, Tehama, 
and Shasta. 

Sixth — The San Joaquin District, which shall include the 
counties of San Joaquin, Stanislaus, Merced, Fresno, Tulare, 
and Kern. 

Seventh — The El Dorado District, which shall include the 
counties of El Dorado, Amador, Calaveras, Tuolumne, Mari- 
posa, Placer, Nevada, Yuba, Sierra, Plumas, Lassen, Modoc, 
Alpine, Mono, and Inyo. 

Note. — The amendments to the original Act appear in brackets. 



b HORTICULTUKAL STATUTES OF CALIFORNIA. 

Sec, 2. The members appointed from each district shall be 
residents of the district from which they are appointed, and 
shall be specially qualified by practical experience and study 
in connection with the industries dependent upon horticulture. 
They shall each hold office for the term of four years, except 
that of the nine first appointed, four, to be determined by lot, 
shall retire at the end of two years, when their successors shall 
be appointed by the Governor. 

Sec. 3. [The Board shall biennially elect a President, a 
Vice-President, a Chairman of the Finance Committee, and 
appoint from without their own number, a Secretary, who 
shall be ex officio Horticultural Officer, and elect of their own 
number a Treasurer, who shall give a bond to the State, with 
sureties approved by the Board, in the sum of ten thousand 
dollars, for the faithful discharge of his duties.] 

Sec. 4. The Board may receive, manage, use, and hold 
donations &,nd bequests for promoting the objects of its forma- 
tion. It shall meet semi-annually, and as much oftener and 
at such places as it may deem expedient, to consult and adopt 
such measures as may best promote the horticultural industries 
of the State. It may, but without expense to the State, select 
and appoint competent and qualified persons to lecture in each 
of'the horticultural districts named in section one of this Act, 
for the purpose of illustrating practical horticultural topics, 
and imparting instruction in the methods of culture, pruning, 
fertilizing, and also in the best methods of treating the diseases 
of fruit and fruit trees, cleansing orchards, and exterminating 
insect pests. The ofiice of the Board shall be kept open to the 
public, subject to the rules of the Board, every day, excepting 
legal holidays, and shall be in charge of the Secretary during 
the absence of the Board. 

Sec 5. For the purpose of preventing the spread of conta- 
gious disease among fruit and fruit trees, and for the prevention, 
treatment, cure, and extirpation of fruit pests and the diseases of 
fruit and fruit trees, and for the disinfection of grafts, scions, 
orchard debris, empty fruit boxes and packages, and other sus- 
pected material or transportable articles dangerous to orchards, 
fruit and fruit trees, said Board shall make regulations for the 
inspection and disinfection thereof, which said regulations shall 
be circulated in printed form by the Board among the fruit- 
growers and fruit-dealers of the State, shall be published at 



HORTICULTURAL STATUTES OF CALIFORNIA. 7 

least twenty days in two daily newspapers of general circulation 
in the State not of the same city or county, and shall be posted 
in three conspicuous places in each county in the State, one of 
which shall be at the county court-house thereof. Such regula- 
tions when so posted shall be held to impart notice of their 
contents to all persona within this State and shall be binding 
upon all persons. 

Sec. 6. [Said board shall appoint without their number a 
competent person, especially qualified for the duties of his office, 
who shall be known as Clerk of the Publishing and Quarantine 
Bureau of the State Board of Horticulture (to hold office at 
the pleasure of the Board), who shall be qualified, by experience 
and education as a compiler, to correct reports and essays; to 
present in a logical order all the information to be published, 
and shall give his whole time in such work, and such other 
duties as may be required of him by the Board and by reason 
of his official position, and shall have power to enforce all rules 
and regulations regarding the spread of insect pests, quarantin- 
ing districts or nurseries found to be infected. He shall be paid 
for his services as Clerk of the Publishing and Quarantine 
Bureau of the State Board of Horticulture, one hundred and 
seventy-five dollars per month, to be paid as other State 
officers.] 

Sec. 7. [The said Board, and in case of necessity during 
the recess of the Board, the said Clerk of the Publishing and 
Quarantine Bureau, may appoint such Quarantine Guardians 
as may be needed to carry out the provisions of this Act, whose 
duties it shall be to see that the regulations of the Board and 
the instructions of the Clerk of the Publishing and Quarantine 
Bureau are enforced and carried out; said Clerk may appoint, 
in case of emergency, a deputy, who shall have the same power 
as his own, whose salary shall not exceed three dollars per day 
for each day's service performed, said services to be paid by the 
State Board of Horticulture. The said Quarantine Guardians 
shall report to the said Clerk, or to the State Board, all infractions 
or violations of said directions, regulations, and of the law in 
regard to quarantine, disinfection, and destruction of insect 
and other pests injurious to fruit, fruit trees, or vines, and pre- 
cautions against the spreading of all the aforesaid named pests 
and diseases. The salary of Quarantine Guardian shall not 
exceed three dollars per day, and shall be paid by the owners 



8 HORTICULTURAL STATUTES OP CALIFORNIA. 

of orchards and other places and localities under quarantine 
regulations; and they may maintain an action therefor before 
any Justice of the Peace in any township in which any quaran- 
tined locality is wholly or in part situated, but in no case shall 
they have any claim upon the State for such services.] 

Sec. 8. [It shall be the duty of the Secretary to attend all 
meetings of the Board and of the Executive Committee and to 
preserve records of its proceedings and correspondence ; to 
collect books, pamphlets, and periodicals, and other documents 
containing information relating to horticulture, and to preserve 
the same; to collect statistics and other information show- 
ing the actual condition and progress of horticulture, in this 
State and elsewhere; to correspond with agricultural and 
horticultural societies, colleges, and schools of agriculture and 
horticulture, and other persons and bodies, as he may be 
directed by the Board; and prepare, as required by the Board, 
reports for publication. He shall appoint, subject to the ap- 
proval of the Board, a competent person as clerk, and he shall 
be held responsible for the acts of said clerk. He shall be 
paid for his services as such Secretary and ex officio Horticul- 
tural Officer, a salary of one hundred and seventy-five dollars 
per month. His clerk shall be paid a salary (as such clerk) 
of fifty dollars per month, each to be paid as other State 
officers.] 

Sec 9. (Repealed.) 

Sec. 10. The Board shall, biennially, in the month of Janu- 
ary, report to the Legislature a statement of its doings, with a 
copy of the Treasurer's accounts for the two years pre- 
ceding the session thereof, and abstracts of the reports of the 
Inspector of Fruit Pests, and Secretary. 

Sec 11. The Treasurer shall receive all moneys belonging 
to the Board, and pay out the same only for bills approved by 
it, and shall annually render a detailed account to the Board. 

Sec 12. (Relates to appropriations which are provided by 
the Legislature every two years.) 

Sec. 13. This Act shall take effect and be in force from and 
after its passage, and all Acts or parts of Acts inconsistent or 
in conflict-with the provisions of this Act are hereby repealed. 

Sec. 14. [The President (and in his absence the Vice-Presi- 
dent) and the two Commissioners for the State at large, shall 
constitute the Executive Committee; said committee shall have 



HORTICULTURAL STATUTES OF CALIFORNIA. iJ 

charge of the management of the affairs of the Board while the 
Board in not in session. The members of said committee shall 
receive their actual traveling expenses in attending quarterly 
meetings of the Executive Committee. The other members of 
the Board shall receive their actual traveling expenses (onl}') 
in attending semi-annual meetings of the Board.] 

Sec 15. [Vacancies occurring in any office shall be filled 
by appointment made by the President of the Board, with the 
consent of the Executive Committee, until the next meeting 
of the Board.] 

Sec. 16. [The Board shall make and publish their reports 
annually.] 

Sec 17. [It shall be the duty of the County Boards of 
Horticulture to make quarterly reports, in writing, to the State 
Board of the condition of fruit interests in their several dis- 
tricts, what is being done to eradicate insect pests, also as to 
disinfecting, and as to quarantine against new insects, and as 
to carrying out of all laws relative to the greatest good of the 
fruit interest. Said Board shall publish said reports in bulletin 
form, or may incorporate so much of the same in their annual 
reports as may be of general interest.] 

Sec 18. [The expenditures necessary to be made in experi- 
ments in the different districts shall be determined by the 
Board. On application of one or more of the fruit-growers in 
such districts, the said Board shall select such person or per- 
sons to make such experiments, and pay the expenses thereof. 
The sum of not exceeding one thousand dollars, for traveling 
expenses, shall be allowed when the Board or the Executive 
Committee shall deem it necessary to send either the Clerk of 
Bureau or Secretary to direct and supervise such experiments; 
provided, that not more than one thousand dollars be expended 
in any one year for such traveling expenses.] 



10 HORTICULTURAL STATUTES OP CALIFORNIA. 

LAW RELATING TO COUNTY BOARDS OF 
HORTICULTURE. 



An Act to promote the horticultural interests of the State 
by providing County Boards of Horticulture, and 
repealing the Act entitled "An Act to protect and pro- 
mote the horticultural interests of the State," approved 
March 14, 1881, and certain Acts amendatory thereof, 
approved March 19, 1889, and March 31, 1891. 

[Approved March 31, 1897.1 

The People of the State of California, represented in Senate and 
Assembly^ do enact as follows: 

Section 1. Whenever a petition is presented to the Board 
of Supervisors of any county, and signed by twenty-five or 
more persons, each of whom is a resident freeholder and pos- 
sessor of an orchard, stating that certain or all orchards, or 
nurseries, or trees of any variety are infested with scale insects 
of any kind, injurious to fruit, fruit trees, and vines, codling 
moth, or other insects that are destructive to trees, and pray- 
ing that a commission be appointed by them, whose duty it 
shall be to supervise the destruction of said scale insects, as 
herein provided, the Board of Supervisors shall, within twenty 
days thereafter, appoint a Board of Horticultural Commis- 
sioners, consisting of three members, who shall be qualified for 
the duties of Horticultural Commissioner. Upon the petition 
of twenty-five resident freeholders and possessors of an orchard, 
the Board of Supervisors may remove any of said commis- 
sioners for cause, after a hearing of the petition. 

Sec. 2. It shall be the duty of the County Board of Horti- 
cultural Commissioners in each county, whenever it shall 
deem it necessary, to cause an inspection to be made of any 
orchards, or nursery, or trees, plants, vegetables, vines, or 
fruits, or any fruit packing-house, storeroom, salesroom, or 
any other place or articles in their jurisdiction, and if found 
infested with scale insects, or codling moth, or other pests inju- 
rious to fruit, plants, vegetables, trees, or vines, or with their 
eggs or larvae, they shall notify the owner or owners, or person 



HORTICULTURAL STATUTES OF CALIFORNIA. 11 

or persons in charge, or in possession of the said places, or 
orchards, or nurseries, or trees, or plants, vegetables, vines, or 
fruit, or articles as aforesaid, that the same are infested with 
said insects, or other pests, or any of them, or their eggs or 
larvae, and they shall require such person or persons to eradi- 
cate or destroy the said insects, or other pests, or their eggs or 
larvaj, within a certain time to be specified. Said nptices may 
be served upon the person or persons, or either of them, own- 
ing, or having charge, or having possession of such infested 
place, or orchard, or nursery, or trees, plants, vegetables, vines, 
or fruit, or articles as aforesaid, by any commissioner, or by 
any person deputed by the said commissioners for that pur- 
pose, or they may be served in the same manner as a summons 
in a civil action. Any and all such places, or orchards, or 
nurseries, or trees, plants, shrubs, vegetables, vines, fruit, or 
articles thus infested, are hereby adjudged and declared to be 
a public nuisance; and whenever any such nuisance shall exist 
at any place within their jurisdiction, or on the property of 
any non-resident, or on any property the owner or owners of 
which cannot be found by the County Board of Horticultural 
Commissioners, after diligent search, within the county, or on 
the property of any owner or owners upon which notice afore- 
said has been served, and who shall refuse or neglect to abate 
the same within the time specified, it shall be the duty of the 
County Board of Horticultural Commissioners to cause said 
nuisance to be at once abated, by eradicating or destroying 
said insects, or other pests, or their eggs or larva3. The 
expense thereof shall be a county charge, and the Board of 
Supervisors shall allow and pay the same out of the general 
fund of the county. Any and all sum or sums so paid shall be 
and become a lien on the property and premises from which 
said nuisance has been removed or abated, in pursuance of this 
Act, and may be recovered by an action against such property 
and premises. A notice of such lien shall be filed and 
recorded in the office of the County Recorder of the county in 
which the said property and premises are situated, within 
thirty days after the right to the said lien has accrued. An 
action to foreclose such lien shall be commenced within ninety 
days after the filing and recording of said notice of lien, which 
action shall be brought in the proper court by the District 
Attorney of the county, in the name and for the benefit of the 



12 HORTICULTURAL STATUTES OF CALIFORNIA. 

county making such payment or payments, and when the 
property is sold, enough of the proceeds shall be paid into 
the county treasury of such county to satisfy the lien and 
costs; and the overplus, if any there be, shall be paid to the 
owner of the property, if he be known, and, if not, into the 
court for his use when ascertained. The County Board of 
Horticultural Commissioners is hereb}^ vested with power to 
cause any and all such nuisances to be at once abated in a 
summary manner. 

Sec. 3. Said County Boards of Horticultural Commis- 
sioners shall have power to divide the county into districts, 
and to appoint a local inspector, to hold office at the pleasure 
of the commissioners, for each of said districts. The State 
Board of Horticulture may issue commissions as quarantine 
guardians to the members of said County Board of Horticul- 
tural Commissioners and to the local inspectors thereof. The 
said quarantine guardians, local inspectors, or members of said 
County Boards of Horticultural Commissioners, shall have full 
authority to enter into any orchard, nursery, place or places 
where trees or plants are kept and offered for sale or otherwise, 
or any house, storeroom, salesroom, depot, or any other such 
place in their jurisdiction, to inspect the same, or any part 
thereof. 

Sec. 4. It shall be the duty of said County Board of Hor- 
ticultural Commissioners to keep a record of their official 
doings, and to make a report to the State Board of Horticulture, 
on or before the first day of October of each year, of the con- 
dition of the fruit interests in their several districts, what is 
being done to eradicate insect pests, also as to disinfecting, and 
as to quarantine against insect pests and diseases, and as to 
carrying out all laws relative to the greatest good of the fruit 
interest. Said Board may publish said reports in bulletin form, 
or may incorporate so much of the same in their annual reports 
as may be of general interest. 

Sec 5. The salary of all inspectors working under the 
County Board of Horticultural Commissioners shall be two 
dollars and fifty cents ($2.50) per day. In the case of the com- 
missioners themselves, their compensation shall be four dollars 
per day, when actually engaged in the performance of their 
duties, and itemized necessary traveling expenses incurred in 
the discharge of their regular duties as prescribed in this Act. 



HORTICULTURAL STATUTES OF CALIFORNIA. 13 

Sec. 6. It shall be the duty of the County Board of Hor- 
ticultural Commissioners to keep a record of their official doings 
and make a monthly report to the Board of Supervisors; and 
the Board of Supervisors may withhold warrants for salaries 
of said members and inspectors thereof until such time as said 
report is made. 

Sec. 7. An Act entitled " An Act to protect and promote 
the horticultural interests of the State," approved March four- 
teenth, eighteen hundred and eighty-one, and certain Acts 
amendatory thereof, approved March nineteenth, eighteen hun- 
dred and eighty-nine, and March thirty-first, eighteen hundred 
and ninety-one, are hereby repealed. 

Sec. 8. This Act shall take effect and be in force from and 
after its passage. 



HORTICULTURAL QUARANTINE LAW. 



An Act for the protection of horticulture, and to prevent 
the introduction into this State of insects, or diseases, or 
animals, injurious to fruit or fruit trees, vines, bushes, 
or vegetables, and to provide for a quarantine for the 
enforcement of this Act. 

[Became a law, under constitutional provision, without Governor's 
approval, March 11, 1899.] 

The Peoitle of the State of California, represented in Senate and 
Assembly, do enact as follows: 

Section 1. Any person, persons, or corporation, who shall 
receive, bring, or cause to be brought into this State any 
nursery stock, trees, shrubs, plants, vines, cuttings, grafts, 
cions, buds, or fruit pits, or fruit or vegetables, shall, within 
twenty-four hours after the arrival thereof, notify the State 
horticultural quarantine officer, or the quarantine guardian of 
the district or county in which such nursery stock, or fruit, or 
vegetables are received, of their arrival, and hold the same 
without unnecessarily moving the same or placing such articles 
where they may be harmful, for the immediate inspection of 
such State horticultural quarantine ofiicer or guardian. If 



14 HORTICULTURAL STATUTES OF CALIFORNIA. 

there is no quarantine guardian or State horticultural quaran- 
tine officer in the county where such nursery stock, or fruit, or 
vegetables are received, it shall then be the duty of such person, 
persons, or corporation to notify the State Board of Horticul- 
ture, who shall make immediate arrangements for their inspec- 
tion. The State horticultural quarantine officer, the quarantine 
guardian, or such person, or persons, as shall be commissioned 
by the State Board of Horticulture to make such inspection, 
or to represent said board, are hereby authorized and empow- 
ered to enter into any warehouse, depot, or upon any dock, 
wharf, mole, or any other place, where such nursery stock, or 
fruit, or vegetables, or other described articles are received, for 
the purpose of making the investigation or examination herein 
provided for. 

Sec. 2. Each carload, case, box, package, crate, bale, or 
bundle of trees, shrubs, plants, vines, cuttings, grafts, cions, 
buds, or fruit pits, or fruit or vegetables, imported or brought 
into this State, shall have plainly and legibly marked thereon 
in a conspicuous manner and place the name and address of 
the shipper, owner, or person forwarding or shipping the same, 
and also the name of the person, firm, or corporation to whom 
the same is forwarded or shipped, or his or its responsible 
agent, also the name of the country. State, or territory where 
the contents were grown. 

Sec. 3. When any shipment of trees, shrubs, plants, vines, 
cuttings, grafts, cions, buds, fruit pits, or fruit or vegetables, 
imported or brought into this State, is found infested with 
injurious insects, or their eggs, larvae, or pupee, or infected with 
tree, plant, or fruit disease or diseases, the entire shipment 
shall be disinfected at the expense of the owner, owners, or 
agent. After such disinfection, it shall be detained in quaran- 
tine the necessary time to determine the result of such disin- 
fection. If the disinfection has been so performed as to destroy 
all iasects, or their eggs, and so as to eradicate all disease and 
prevent contagion, and in a manner satisfactory to the State 
horticultural quarantine officer, the quarantine guardian of 
the district, or the person commissioned by said board, the trees, 
vines, vegetables, seeds, or other articles shall then be released. 

Sec. 4. When any shipment of trees, shrubs, plants, vines, 
cuttings, grafts, cions, buds, fruit pits, or fruit or vegetables. 



HORTICULTURAL STATUTES OF CALIFORNIA. 15 

imported or brought into this State, is found infested with any 
species of injurious insects, or their eggs, larvse, or pupic, not 
existing in the orchards, vineyards, gardens, or farms of Cali- 
fornia, such infested shipments shall be immediately sent out 
of the State, or destroyed, at the option of the owner, owners, 
or agent, and at his or their expense. 

Sec 5. No person, persons, or corporation, shall bring or 
cause to be brought into the State any peach, nectarine, or 
apricot trees, or cuttings, grafts, cions, buds, or pits of such 
trees, or any trees budded or grafted upon peach stock or root 
that has been in a district where the disease known as " peach 
yellows " or the contagious disease known as contagious " peach 
rosette " are known to exist, and any such attempting to land 
or enter shall be refused entry and shall be destroyed or 
returned to the point of shipment, at the option of the owner, 
owners, or agent, and at his or other [their] expense. 

Sec. 6. No person, persons, or corporations shall bring, or 
cause to be brought into this State any injurious animals 
known as English or Australian wild rabbit, flying-fox, mon- 
goose, or any animal or other animal or animals detrimental 
to horticultural and agricultural interests. 

Sec. 7. Any person, persons, or corporation violating any 
of the provisions of this Act is guilty of a misdemeanor. 

Sec 8. This Act shall take effect and be in force from and 
after its passage. 



16 HOKTICULTURAL STATUTES OF CALIFORNIA. 

COURT DECISIONS AND LEGAL OPINIONS ON THE 
HORTICULTURAL LAWS. 



HORTICULTURAL LAW CONSTITUTIONAL. 
Opinion of the Attorney-General. 

By the Act of 1881, entitled "An Act to promote the horti- 
cultural interests of the State," it became incumbent on the 
County Boards of Supervisors to appoint County Boards of 
Horticultural Commissioners on presentation of a petition 
signed by twenty-five or more resident freeholders and pos- 
sessors of orchards. A petition so signed was presented to the 
Board of Supervisors of Sonoma County, who refused to act 
thereunder, and mandamus proceedings were commenced 
against them. Prior to the commencement of the suit, how- 
ever, the Secretary of the State Board of Horticulture applied 
to the Attorney-General for an opinion as to the constitution- 
ality of the Act, and received the following reply: 

Office of the 
Attorney-General of the State of California, 
Sacramento, .June 10th, 1889. 
B. M. Lelong, Esq., 

Secretary State Board of Horticulture, San Francisco: 

Dear Sir: Replying to your inquiry of 8th instant, I have 
to say that I regard the Act "to amend an Act entitled 
'An Act to protect and promote the horticultural interests of 
the State,' approved March 14, 1881" (Statutes of 1889, page 
413), constitutional. It is a later Act than the other Act to 
which you call my attention, approved March 7, 1889 (Statutes 
of 1889, page 89), and if there is any conflict between the two 
Acts, the later Act must prevail; but I do not wish to be under- 
stood as saying that there is any conflict. 

I think the Board of Supervisors of Sonoma County, on the 
presentation of a proper petition, as required by the Act of 
March 19, 1889, should, within the time limited, select a County 



HORTICULTURAL STATUTES OF CALIFORNIA. 17 

Board of Horticultural Commissioners. Nor is it necessary for 
me at this time to give an opinion whether everything in the 
Act of March 19, 1889, is constitutional. 
Very truly yours, 

G. A. JOHNSON, 

Attorney-General. 



APPOINTMENT OF COUNTY BOARDS MANDATORY. 
Decision of Superior Court of Sonoma County. 

Upon this a mandamus suit was brought against the Board 
of Supervisors of Sonoma County; and Hon. .John G. Pressley, 
Judge of the Superior Court of Sonoma County, on the 19th 
day of June, 1889, rendered the following decision, in which 
the validity of the Act directing the Boards of Supervisors to 
establish County Boards of Horticultural Commissioners is 
sustained: 

E. A. Rogers vs. The Board of Supervisors of Sonoma 

County. 

John Goss, Esq., attorney for plaintiff. 

On the 19th of March an Act of the Legislature was approved, 
entitled "An Act to amend an Act entitled 'An Act to protect 
and promote the horticultural interests of the State,' approved 
March 14, 1881." 

This Act (of March, 1889) provides that, "Whenever a peti- 
tion is presented to the Board of Supervisors of any county, 
and signed by twenty-five or more persons who are resident 
freeholders and possessors of an orchard, or both, stating that 
certain or all orchards or nurseries, or trees of any variety, are 
infested with scale insects * * * that are destructive to 
trees, and praying that a commission be appointed by them, 
whose duty it shall be to supervise their destruction, as herein 
provided, the Board of Supervisors shall, within twenty days 
thereafter, select three commissioners for the county, to be 
known as a County Board of Horticultural Commissioners." 

The duties of the board so appointed are declared by the 
Act. It appears from the complaint that, in accordance with 

2— HS 



18 HORTICULTURAL STATUTES OF CALIFORNIA. 

this Act, a petition was presented to and filed with the Board 
of Supervisors, signed by this plaintiff and twenty-six other 
persons possessing the qualifications prescribed by the Act, 
praying for the appointment of a County Board of Horticul- 
tural Commissioners for Sonoma County, and a demand was 
made on the Supervisors that they carry into effect the pro- 
visions of the Act, and appoint the commissioners. 

The Board refused to appoint commissioners. 

Twenty days have expired since the filing of the petition and 
the demand for action upon it, and still the Board of Super- 
visors refuse and neglect to make any selections or appoint- 
ment of commissioners. 

This action is brought for a writ of mandate compelling the 
Board of Supervisors to make the selection and appointment 
as required of them by the Act. 

A demurrer has been interposed to the complaint, and in 
support thereof it is contended: 

First— Thsit the Act of 14th of March, 1881, of which the 
Act of 19th of March is amendatory, was repealed by an Act 
approved 13th of March, 1883, which provides for the appoint- 
ment by the Governor of a State Board of Horticulture, and 
that in consequence of the Act of 1889 being an amendment of 
a repealed statute, it is nugatory. 

The Act of 1883 does not, in express terms, repeal the Act of 
1881, nor is that Act elsewhere expressly repealed. It is a 
well-settled legal principle that repeals by implication are not 
favored. A siibsequent Act does not, by implication, repeal a 
prior statute, unless the subsequent one entirely covers the pro- 
visions of the first, and so completely that every portion of the 
first is provided for by the second. There must appear an 
intent to entirely substitute one for the other. 

Says Bishop in his work on Statutory Crimes, Section 154: 
" We have seen that every legislative Act in affirmative words 
is to be regarded, prima facie, as an addition to the mass of 
law; for such on its face it purports to be. Yet when it is 
inconsistent with the former law, it must, as the last expression 
of the legislative will, prevail. But repeals by implication, 
thus explained, are not favored. And a legislative intent to 
repeal an existing statute is never presumed. If two Acts, 
seeming to be repugnant, can be reconciled by any fair con- 



HORTICULTURAL STATUTES OF CALIFORNIA. 19 

struction, they must be, when no repeal will be held to take 
place." 

The same principle is laid down by Judge Field in the case 
of Pierrepont vs. Crouch, 10 Cal. 316. 

There are numerous other authorities to the same effect. 

Is there any apparent intent to substitute one of these Acts 
for the other, or such repugnance as would destroy the first? 
Let us see. The first provides for a County Board of Horti- 
culture. The second for a State board. The first prescribes 
duties to be performed by County Boards of Supervisors. The 
second prescribes duties to be discharged by the Governor. 
The first provides for a board of three commissioners with 
local jurisdiction. The second for a board of nine commis- 
sioners with a jurisdiction coextensive with the State. The 
first authorizes boards created by its authority to divide 
counties into districts. The second creates districts composed 
of several counties. The first requires duties to be performed 
by county boards which are not required by the second, of the 
State board. For instance: The first provides for proceedings 
against persons who, after notice, fail or refuse to treat infested 
trees as directed by the board, and a destruction of trees by 
such board when directed by a court. No such proceedings 
and destruction are provided for by the second. There are 
other differences between the two Acts which might be pointed 
out, but these are sufficient to show that there is no such 
similarity in the powers of the boards created by them as would 
necessarily cause a conflict between these boards, or would 
justify a court in holding that one Act repeals the other. I 
must, therefore, hold, that the Act of 1881 was not repealed by 
the Act of 1883, and was in full force when the amendatory 
Act of 1889 was passed. The Act of 1883 is an addition to the 
then existing legislation, and not a substitute for the Act of 
1881. 

Second — It was contended that Acts of the Legislature which 
provided that a duty imposed shall be performed within a 
certain time are directory and not mandatory. I cannot assent 
to that proposition. Where a court or board is directed by 
law to perform an act in a given time, the law, unless it 
declares the act may not be done after the expiration of the 
time, is so far directory as that the act is valid though done 
after the time fixed, but is not director}"- in the sense that the 



20 HORTICULTUKAL STATUTES OF CALIFORNIA. 

duty or act directed may be entirely disregarded or omitted. 
The time is given that the board may have ample opportunity 
to act intelligently and with good judgment, but not to enable 
the board or officer of whom the duty is required to disregard 
it entirely. I have no doubt but that the Board of Supervisors 
is required by the law in question to appoint a County Board 
of Horticultural Commissioners, and that it may be lawfully 
done after the expiration of the twenty days given them in the 
Act for deliberation. 

Counsel referred to some authorities from other States in 
support of his contention. I do not think these authorities 
go to the extent claimed by him, and if they did, there being 
no such decision by our own Supreme Court, I would hold the 
law in this State to be different. The purpose of the Legis- 
lature was to give the Supervisors time to make judicious 
selections, and not to justify or authorize an annulment of the 
legislative will expressed by the statute. 

.JOHN G. PRESSLEY, Judge. 



ENFORCEMENT OF THE HORTICULTURAL QUARANTINE 
REGULATIONS. 

In a case brought before the Superior Court of Los Angeles, 
the constitutionality of the Act of 1881, as amended, was ques- 
tioned as to its enforcement, and upheld. It was an action 
brought to declare a shipment of orange trees from Tahiti a 
nuisance and have them destroyed, they being infested with 
injurious insects, etc. The findings of the court are as follows: 

This is an action brought by the District Attorney of the 
County of Los Angeles, in the name of the people, for the con- 
demnation, and abatement as a nuisance, of certain trees. The 
complaint alleges that in June, 1891, the defendants brought 
from Tahiti to San Pedro, in the County of Los Angeles, certain 
orange trees, numbering about 325,000, and that the same 
were, and still are, infested with scale insects and other pests 
injurious to fruit trees. That the Horticultural Commission- 
ers of the County of Los Angeles notified defendants that the 
trees were so infested, and required them to eradicate and 



HORTICULTURAL STATUTES OF CALIFORNIA. 21 

destroy the insect pests thereon. That defendants caused the 
process of disinfection to be performed upon said trees, but 
said process was unsuccessful, and, although frequently 
repeated, has not eradicated or destroyed said insects. That 
among said insects is a scale insect hitherto unknown in the 
State of California, which cannot be destroyed by any process 
of disinfection; and that the said scale insects with which the 
trees are infested, if not destroyed, will be introduced into the 
orange orchards of California, and the orange industry greatly 
injured, if not totally destroyed. That the said scale insects 
cannot be destroyed without the destruction of said trees; that 
the defendants are contemplating the removal of said trees into 
the interior of the State of California, and that the said scale 
insects would be thereby distributed among other trees and 
propagated and spread all over the State of California. The 
complaint prays a judgment of the court that the trees be 
declared a nuisance and ordered to be destroyed. 

Plaintiff relies, for its right to maintain the action, upon the 
provisions of the Act of the Legislature, approved March 19, 
1891, declaring any orchards, trees, plants, or shrubs infested 
with insect pests injurious to plants, trees, etc., to be a nuisance, 
and also upon the theory that the trees in question are, under 
the general provisions of the Code, a public nuisance, and may 
be abated by an action brought in this manner. 

It therefore becomes necessary for the Court to consider the 
power of the Legislature to adopt this statute, and the question 
whether, in the absence of statutory provisions, the action 
could be maintained. 

My attention has not been directed to any constitutional 
limitation which affects the right of the Legislature to adopt a 
statute such as the one in question. The statute does not 
determine that any specific orchard or trees are a nuisance, 
but leaves it to the courts to determine whether there exists a 
condition of affairs which will make any particular trees a 
nuisance, and is, in my opinion, constitutional. 

The law of nuisance, under our codes, is practically but a 
reenactmentof the common law; and while this case is peculiar 
in its character and circumstances (being the first of the kind 
tried in the State), and in many respects utterly unlike any 
case to be found in the Reports, yet the duty to be performed 



22 HORTICULTURAL STATUTES OF CALIFORNIA. 

by the Court is the application of decisions disposing of cases 
widely differing from this as to the facts, but laying down 
principles which, by analogy, can be applied to the facts of 
this case. 

It is peculiarly the characteristic of cases, under the law of 
nuisance, that they are largely dependent upon surroundings. 
The common law is not an iron-cast system, to which every case 
must be fitted without regard to its particular circumstances, 
but is a system which derives its beauty and utility from the 
fact that it is the condensation of the wisdom and learning of 
centuries, modified from time to time by the circumstances of 
period and place. In the consideration of any case which is 
dependent, to a greater or less degree, upon the circumstances 
and surroundings of the community and State, it is the duty 
of the Court to take into consideration the condition and devel- 
opment of the industries which may be afiected by its judgment, 
for the purpose of properly applying the rules of law to the 
circumstances of the case. The Court, therefore, in applying 
the principles of the common law and the decisions thereunder, 
takes into consideration all the facts to which those decisions 
and principles are to be applied. 

"That new conditions and new facts may produce the novel 
application of a rule which has not been before applied in like 
manner, does not make it any less the common law ; for the 
latter is a system of grand principles, founded upon the mature 
and perfected reason of centuries. It would have but little claim 
to the admiration to which it is entitled if it failed to adapt 
itself to any condition, however new, which may arise; and it 
would be singularly lame if it is impotent to determine the right 
of any dispute whatever. Having, as far as we have gone, met 
all difficulties by adhering to its doctrines, we have no ground 
to presume that we will have to go beyond its precincts for a 
solution of any which may arise. Every judge is bound to 
know the history and the leading traits which enter into the 
history of the country where he presides. This we have held 
before, and it is also an admitted doctrine of the common law." 
{Conger vs. Weaver, 6 Cal. 548.) 

The Court, therefore, takes judicial notice of the history, 
development, and character of the industries of California ; of 
the fact that the production of fruits is one of the leading 
occupations in this State, and that a large portion of the people 



HORTICULTURAL STATUTES OF CALIFORNIA. 23 

are dependent upon it. It takes judicial notice of the fact that 
a large portion of the land in this and adjoining counties is 
devoted to the cultivation of citrus fruits, and that the annual 
production and shipment of oranges is very great, and that the 
spread of any insect pest injurious to citrus trees must neces- 
sarily result in serious injury to that business and in great loss 
and destruction of property. 

That orchards and trees infested by scale or insect pests in- 
jurious to vegetation and which will easily spread to other 
places, must be a nuisance, pnma/acie, seems too clear to require 
discussion, and would not receive it at the hands of this Court 
but for the fact that this is the first case of this kind. 

"A nuisance is anything that worketh hurt, inconvenience, 
or damage." (Black, vol. 3, p. 213.) 

"Anything which is injurious to health, or is indecent or of- 
fensive to the senses, or an obstruction to the free use of prop- 
erty, so as to interfere with the comfortable enjoyment of life 
or property, or unlawfully obstructs the free passage or use, in 
the customary manner, of any navigable lake, or river, bay, 
stream, canal, or basin, or any public park, square, street, or 
highway, is a nuisance." (Sec. 3479, C.C.) 

"A public nuisance is one which affects at the same time an 
entire community or neighborhood, or any considerable number 
of persons, although the extent of the annoyance or damage 
inflicted upon individuals may be unequal." (Sec. 3480, C.C.) 

The kinds of nuisances which have been abated are almost 
innumerable in variety, each dependent upon the particular 
character and circumstances under which it exists. 

In the case of Campbell vs. Seaman, 63 N. Y. 568, the use of 
bituminous coal, which produced vapors injurious to vegetation, 
was held to be a nuisance. Again, a house in so ruinous a 
condition as to be likely to fall upon the house of another is a 
nuisance. ( Tenant vs. Goldwin, 2 Ld. Raymond, 1893.) Build- 
ings in an unsafe condition in a public street are common 
nuisances. (Wood's Law of Nuisances, p. 8.) Production of 
vapors injurious to vegetation is a nuisance. ( Wood's Law of 
Nuisances, Sec. 536, et seq.) 

It has been argued by defendant's counsel that a prospective 
nuisance will not be abated, and the authorities cited by them 
would be conclusive in this case if applicable to its facts. But 
the fallacy of their argument is that in the cases cited by them 



24 HORTICULTURAL STATUTES OF CALIFORNIA. 

no considerable injury could be done until the actual existence 
of a nuisance could be shown. In the case at bar, before dam- 
age could be actually shown, it would be necessary for the scale 
insects in question to be disseminated through a considerable 
portion of the orchards of the State and their propagation have 
reached a stage at which it would be extremely difficult, if not 
impossible, to check and eradicate them. 

It appears to me that this case belongs to that class in which, 
if the allegations of the complaint are true, a damage will be 
inferred, and it is not necessary to wait until it is actually done. 
It is similar in that respect to the cases in which diseased ani- 
mals are taken to public places when there is danger of infec- 
tion, to the cases of the storing of explosives, and to the cases 
of condemnation of dangerous buildings and places likely to be 
injurious to the health of the community — in all of which the 
abatement of the nuisance rests merely upon the reasonable 
apprehension of danger. The fact that the trees are at San 
Pedro does not prevent their being considered an existing 
nuisance, as the evidence shows that the larvae of the scale 
may be carried by birds, insects, and the winds to distant por- 
tions of the county and State. 

The evidence in the case shows that at the time of the 
arrival of the trees at San Pedro they were infested with eight 
different varieties of pests, and that subsequently they were 
treated six times with different processes for the destruction of 
the scale; that the treatment was successful as to all kinds 
except a species of scale hitherto unknown in California, called 
the mining scale or Chionaspis hiclavis; and that all efforts to 
eradicate this scale have been unsuccessful, and seem to have 
been abandoned by defendants. 

The evidence with regard to this scale is entirely that of 
expert witnesses, who, never having seen it before, are unable 
to testify positively as to its effects, other than from their 
opinion derived from familiarity with the cultivation of the 
orange, from experience with the other scale insects similar in 
character with which orange trees are infested, and from their 
observation of this insect found upon the trees in question. 
The evidence and the inspection of the Court, however, show 
positively that the mining scale derives its nutrition and sup- 
port entirely from the tree, and consequently must be injurious 
in a greater or less degree. The expert witnesses all agree in 



HORTICULTURAL STATUTES OF CALIFORNIA. 25 

the opinion that it is injurious to the health of the tree, and 
that if introduced into the State it would occasion great injury 
to the orange orchards. 

An entomologist and agent of the Department of Agriculture 
testified that he had made an examination of the trees at San 
Pedro, and found the mining scale upon them in a healthy 
condition on the day before the trial of the cause; that he did 
not know of its existence elsewhere in the State, and that there 
could be no doubt about its being detrimental, living at the 
expense of the tree. He was of the opinion that by some 
process the scale might be destroyed without the destruction 
of the trees, but was unable to give any method by which it 
could be done. 

Alexander Craw, Quarantine Officer of the State Board of 
Horticulture, testified that he had inspected the trees eight or 
ten times, examined the scale in question, and found the live 
scale and larvte. In his opinion the mining scale could not 
be destroyed without destroying the trees. He considered it a 
very destructive scale, and knew of no way by which it could 
be eradicated except by destroying the trees. It was, in his 
opinion, a more dangerous insect than the cottony-cushion 
scale, and would be very injurious to the orange industry. 

The other witnesses testified substantially to the same 
opinions as those given by Mr. Craw. 

The trees in question, now reduced in number to about 
60,000, are contained in crates at San Pedro; and the evidence 
shows that, in an examination of the trees at this time, live 
scale is found on only a portion of the trees, but that a thorough 
examination would require five or ten minutes for each tree. 

The evidence establishes all the allegations of the complaint, 
being open only to the objection that it is to a great extent 
merely expert opinion. But. under the circumstances, that is 
the best evidence* of which the case is susceptible. 

This evidence is practically uncontradicted by the defense, 
as no witness has been produced who claims to know any 
process by which this scale can be destroyed, or that it is not 
injurious. 

The defense claims that the trees should be separated, and 
only those upon which the scale are found be destroyed. There 
is no doubt that the position of the defendants is correct, that 
in abating a nuisance no more property should be destroyed 



26 HORTICULTURAL STATUTES OF CALIFORNIA. 

than is absolutely necessary for that purpose. But in this case 
the situation of these trees is such that there is no certainty 
that all are not infested, and if such separation can be made it 
should be done by defendants. 

The period during which the case has been pending was suf-, 
ficient to give the defense every opportunity to disinfect these 
trees. 

From the evidence of the experts, and in the absence of any 
suggestion of a method by which the trees can be disinfected, 
the Court must conclude that it cannot be done without the 
destruction of the trees. 

It therefore follows that the allegations of the complaint are 
sustained by the evidence. The Court is of the opinion that 
the statute of March 19, 1891, is constitutional, and that even 
in the absence of such a statute the trees in question are a 
nuisance under the Code, and that plaintiff is entitled to the 
relief demanded in the complaint. 

Let findings and judgment be submitted in accordance with 
this opinion. 

J. W. McKINLEY, 

Judge. 



CONSTITUTIONALITY OF HORTICULTURAL LIENS. 

L. A. No. 486. Department Two. November 11, 1899. 

COUNTY OF LOS ANGELES, Appellant, \ 

vs. > 

W. D. SPENCER ET AL., Respondents. / 

Act to Protect Horticulture— Title. — Every provision of the Act of 1881, 
page 88, entitled "An Act to protect and promote the horticultural 
interests of the State," and of the Acts amendatory thereof, is germane 
to the subject-matter expressed in its title, and is properly embraced 
therein. 

Id. — Horticultural Commissioners — Power to Determine Nuisance — 
Judicial Power— Police Power.— The power given by such Act to the 
Horticultural Commissioners to determine whether any particular place 
is a nuisance and to abate the same is not a judicial power, within the 
meaning of the inhibition of Article III of the Constitution; and the 
Act is a proper exercise of the police power within the meaning of 
Section 1 of Article XIX of the Constitution. 



HORTICULTURAL STATUTES OF CALIFORNIA. 27 

Id. — Public Nuisances— Infected Places — Insect Pests. — The Legislature 
has the power to declare that to be a nuisance which is such in fact, and 
the places declared by such Act to be public nuisances, to wit: "All 
places, orchards, nurseries," et cetera, infected with "scale insects or 
codling moth, or other pests injurious to fruit, plants," et cetera, are 
clearly such within the definition of that term as used in Sections 3479 
and 3480 of the Civil Code. 

Id.— Lien for Abating Nuisance.— The lien given by the statute upon the 
premises from which such nuisance has been abated, for the expenses of 
abating it, is not for a delinquent tax, but for an indebtedness due the 
county, and its enforcement in the way prescribed by the statute is not 
unconstitutional. 

Appeal from a judgment of the Superior Court of Los 
Angeles County. Walter Van Dyke, Judge. 

The facts are stated in the opinion. 

J. A. Donnell and William P. James, for Appellant. 

Tanner & Taft, and Gardiner, Harris & Rodman, for 
Respondents. 

GRAY, C. The plaintiff appeals from a judgment following 
an order sustaining a demurrer to an amended complaint 
without leave to further amend. 

The amended complaint purports to set out a cause of action 
to foreclose a lien for the expense of abating an insect pest 
nuisance in defendants' orchard. This lien is claimed to exist 
by virtue of an Act entitled "An Act to protect and promote 
the horticultural interest of the State," and Acts amendatory 
thereof and additional thereto. The Act in question may be 
found in the Statutes of 1881, page 88, and the amendments 
and additions thereto in the Statutes of 1889, page 413, and 
the Statutes of 1891, pages 260 and 268. In sustaining the 
demurrer without leave to amend, the learned Judge of the 
court below filed an opinion, in which the principal reason 
assigned for the action of the court is that the Act in question 
is unconstitutional, and this, also, is the main reason urged on 
this appeal in support of the judgment. It is said, first, that 
the Act embraces more than one subject grouped under one 
title. The Act as amended provides for the appointment, by 
the Board of Supervisors of any county in the State to whom 
the required petition is presented, of a horticultural commis- 
sion of not exceeding three members. It also prescribes the 
length of the terms of office of said commissioners and the 
manner of filling vacancies therein. It then defines the duties 



28 HORTICULTURAL STATUTES OF CALIFORNIA. 

and powers of the Board of Horticultural Commissioners, fixes 
their compensation, and provides for their removal. It makes 
the expense of removing or abating an insect pest nuisance 
from any property infested thereby a lien upon the property 
or premises from which such nuisance has been abated. All 
the duties and powers conferred upon said board appertain to 
the abating of those insect pest nuisances which interfere with 
the business of horticulture. 

From this brief summary it will be readily seen that every 
provision of the Act points directly to the protection and pro- 
motion of the horticultural interests of the State, and hence all 
said provisions relate to but one subject and may be properly 
grouped in one Act under the very appropriate title of "An 
Act to protect and promote the horticultural interests of the 
State." This view seems to be supported by the following 
cases therein cited: Ex parte Liddell, 93 Cal. 633; Abeel vs. Clark, 
84 Cal. 226. 

It is urged that the Act in question is unconstitutional and 
invalid because it confers judicial powers upon the Horti- 
cultural Commissioners, contrary to Article III of the State 
Constitution; but we do not think that this contention can be 
maintained. This provision of the Constitution must be under- 
stood as construed by judicial decisions, and with reference to 
the subject of police power. The Act itself defines the nuisances 
to which it relates and declares that "all places, orchards, 
nurseries," et cetera, infected with "scale insects, or codling 
moth, or other pests injurious to fruit, plants," et cetera, are 
public nuisances. In determining whether any particular 
place is a nuisance, the commissioner, no doubt, exercises some 
discretion which, in a strict sense, is in its nature judicial; but 
the executing of a police regulation quite often calls into action 
that kind of discretion. And yet the acts of a commissioner 
involved in this case are no more judicial than the acts of 
officers under many other laws and ordinances which have 
been held valid. Ordinances prohibiting the erection of wooden 
buildings within fire limits except upon the order of fire com- 
missioners; giving viticultural commissioners power to prohibit 
the importation of diseased vines; prohibiting the carrying on 
of a public laundry without a certificate of the health officer 
and of the board of fire wardens; prohibiting retail liquor busi- 
ness without permission of the board of police commissioners; 



HORTICULTURAL STATUTES OF CALIFORNIA. 29 

giving to the superintendent of public streets the power to 
determine where, either on a public street or on private 
premises, any rubbish should be deposited; forbidding orations, 
harangues, et cetera, in a park without consent of the park 
commissioners, or upon other grounds except by permission of 
the city government committee; beating drums, et cetera, with- 
out permission of the president of the village; prohibiting 
manufacturers and others from ringing bells, et cetera, except 
at such times as the board of aldermen may designate; author- 
izing harbormasters to station vessels and to assign each its 
place; forbidding the keeping of swine without a permit from 
the board of health; and giving to boards of health, quaran- 
tine officers, and milk inspectors discretion as to the exercise 
of police powers — all such laws and ordinances have been 
judicially held to be valid, although they confer the same 
power upon designated public officers as is given by the Act 
here in question to the commissioners. {Ex parte Ah Fook, 49 
Cal. 402; In re Flaherty, 105 Cal. 558, and cases there cited; 
Ex parte Fiske, 72 Cal. 125; Bittenhaus vs. Johnston, 92 Wis. 
588; Train vs. Boston Disinfecting Co., 114 Mass. 523, 59 Am. 
Rep. 113; Newton vs. Joyce, 166 Mass. 83.) The efficiency of 
many police regulations depends upon their prompt and sum- 
mary execution; and therefore, from necessity, certain discre- 
tion must be given to the officers who are to make the regulations 
effective. In Ex parte Ah Fook, supra, this Court said: "It is 
obvious that to render effectual an inquiry which has for its 
purpose the carrying into operation of quarantine or health 
laws it must be prompt and summary, and we are not aware 
that any reasonable provisions of the statute clothing such 
officers or boards with enlarged powers often exercised by them 
have ever been held unconstitutional." In the case at bar, the 
acts of the commissioner are not clothed with that sanctity and 
protection which accompanies the judicial acts of courts and 
judges, and the commissioner would be liable officially and 
personally for wrongful acts done under the color of his office. 
And then, again, the lien in question here could not be enforced 
until after a judicial investigation and determination by a 
court. 

Beyond any question the Legislature has the power to declare 
that to be a nuisance which is such in fact, and we think it 
safe to assert that everything declared to be a public nuisance 



30 HORTICULTURAL STATUTES OF CALIFORNIA. 

in the Act in question comes clearly within the meaning of 
that term as defined in the Civil Code, Sections 3479 and 3480. 

It is known that the existence of the fruit industry in the 
State depends upon the suppression and destruction of the 
pests mentioned in the statute. The Act in question is, there- 
fore, a proper exercise of the police power which the Legisla- 
ture has, under Section 1 of Article XIX of the Constitution, 
to subject private property to such reasonable restraints and 
burdens as will secure and maintain the general welfare and 
prosperity of the State. {Abeel vs. Clark, supra; Train vs. 
Boston Disinfecting Co., supra.) In this connection, it may be 
well to observe that the statute does not authorize any injury 
to or destruction of property, but, on the contrary, its provisions 
are beneficial to the very property upon which it operates. 

The lien given by the statute is not for a delinquent tax, but 
for an indebtedness due the county, and the enforcement of it 
in the way prescribed by the statute is not obnoxious to any 
constitutional inhibition. 

The case of Boorman vs. Santa Barbara, 65 Cal. 313, and the 
other California cases cited by respondent to show that private 
property cannot be subject to burdens without due process of 
law, are sound in principle, but as to the matter of notice the 
statute here under consideration is not like any of the statutes 
in those cases. The subject of those statutes, street improve- 
ments, does not naturally call for such prompt and immediate 
action as might be necessary in the abatement of a contagious 
nuisance like that treated of in the statute here in question. 
{Surocca vs. Geary, 3 Cal. 69; 58 Am. Dec. 385.) 

We discover no conflict with any constitutional provision in 
the Act under consideration as finally amended in 1891. 

E'or the foregoing reasons we advise that the judgment be 
reversed and the cause remanded. 

We concur: 

CHIPMAN, C. 
HAYNES, C. 

For the reasons given in the foregoing opinion the judgment 

is reversed and the cause remanded. 

McFARLAND, J. 

TEMPLE, J. 

HENSHAW, J. 

Hearing in bank denied. 



HORTICULTURAL STATUTES OF CALIFORNIA. 31 

THE RIVERSIDE CASE. 

Arthur Butcher, of Riverside, the owner of an orange orchard 
infested with red scale, upon being notified to fumigate the 
same by the County Board of Horticultural Commissioners, 
refused to do so. Under the law the board proceeded to fumi- 
gate the orchard, and the expense was paid out of the general 
fund of the county in the sum of $196.46. 

The District Attorney at once began suit to declare the sum 
a lien on the orchard and real estate of Mr. Butcher, and the 
case was heard before Superior Judge Noyes of Riverside 
County, in November, 1899, and Judge Noyes followed the 
opinion of the Superior Court of Los Angeles County in the 
Spencer case, which had recently held the law unconstitutional, 
as too arbitrary in selling real estate for such purposes. The 
Los Angeles case and also the Riverside case were both appealed 
to the Supreme Court, and both have been reversed. The 
Supreme Court decided both cases on the theory that as the 
fruit industry is so important, and the destructiveness of scale 
so deadly, no citizen should be allowed to permit the growth 
and spread of the pests; and while the penalty of loss of land 
is severe, it is just. 

In the Superior Court of the County of Riverside, State of 
California. 
THE COUNTY OF RIVERSIDE, Plaintiff, \ 

vs. > COMPLAINT. 

ARTHUR BUTCHER, Defendant. / 

Plaintiff complains and alleges: 

I. That at all the times hereinafter mentioned plaintiff was 
and now is a duly organized county of the State of California. 

II. That at all the times hereinafter mentioned there was 
and still is a duly appointed, qualified, and acting Board of 
Horticultural Commissioners for said county, consisting of 
three members. That a petition was presented to the Board 
of Supervisors of Riverside County, signed by more than 



32 HORTICULTURAL STATUTES OF CALIFORNIA. 

twenty-five persons, each of whom was a resident freeholder of 
said county and possessor of an orchard, stating that certain 
orchards of said county were infested with scale insects 
destructive to fruit trees, and praying that a commission be 
appointed by said Supervisors to supervise the destruction of 
said scale insects; and within twenty days after said petition 
was presented said Board of Supervisors appointed three persons 
qualified to perform the duties of Horticultural Commissioners. 

III. That the defendant herein, Arthur Butcher, at all 
times hereinafter mentioned was and still is the owner in fee 
of the following described real estate, situated in the County of 
Riverside, State of California, to wit: All of lot 233 and frac- 
tional lot 236 as the said lots are delineated on the map of the 
lands of the Southern California Colony Association on file in 
the office of the County Recorder of San Bernardino County, 
California. 

IV. That at all the times herein mentioned there was and 
is standing and growing on said land a fruit-bearing orchard 
consisting of orange trees, the property of said defendant. 

V. That on the 22d and 23d days of August, 1898, the said 
Board of Horticultural Commissioners, pursuant to the statute 
in such cases made and provided, caused an inspection of said 
orchard to be made, and found the same to be infested with 
red scale insects that are destructive to trees, and by law 
declared to be a public nuisance; that thereafter, to wit, on the 
24th day of August, 1898, the said fruit trees being still infested 
with said scale as aforesaid, the said Board of Horticultural 
Commissioners caused a notice to be served upon W. Miller, 
the person in charge of and in possession of said premises and 
orchard for the defendant as his agent, requiring said defend- 
ant and agent to eradicate or destroy the said scale and insects 
so found upon said trees within ten days after the service of 
said notice. A copy of said notice is hereto attached and made 
a part of this complaint as "Exhibit B." 

VI. That notwithstanding said requirement was made by 
the said Board of Horticultural Commissioners upon the said 
defendant to eradicate or destroy said scale as aforesaid within 
ten days after the service of said notice, the said defendant 
wholly neglected and refused to eradicate or destroy said scale 



HORTICULTURAL STATUTES OF CALIFORNIA. 33 

within ten days after the service of said notice, or at any other 
time or at all. 

VII. That thereafter, to wit, on the 20th to 25th days of 
September, 1898, the said Board of Horticultural Commis- 
sioners entered upon said premises and destroyed and eradi- 
cated the said scale so found upon said trees; that the expense 
incurred in eradicating and destroying said scale amounted to 
and was the sum of $196.46, which said sum the Board of 
Supervisors of the said plaintiff allowed and paid out of the 
general fund of the county on the 9th day of December, 1898. 

VIII. That the said amount so paid by the said Board of 
Supervisors has never been repaid to the county by the defend- 
ant, or any other person, and is now due and wholly unpaid. 

IX. That thereafter and within thirty days after the right 
of said lien had accrued, to wit, on January 7, 1899, the Board 
of Horticultural Commissioners caused a notice of a lien upon 
the above described real estate, as provided by law, to be filed 
and recorded in the office of the Recorder of said Riverside 
County, being the county in which said property and premises 
are situated, a copy of which notice of lien is hereto attached 
and made a part of this complaint as "Exhibit A." 

Wherefore, plaintiff demands foreclosure of said lien, and 
that by judgment and order of this Court the said money so 
expended as aforesaid to eradicate said scale be declared to be 
a lien on said land, and that judgment may be entered against 
said land and defendant for said sum with costs, and that by 
said judgment it may be decreed that the said land shall be 
sold and that enough of the proceeds shall be paid into the 
county treasury of the plaintiff to satisfy the aforesaid lien and 
costs, and that the surplus, if any, be paid to the owner of the 
property if he be known, and if not, into the court for his use 
when ascertained. 

LYMAN P:VANS, 
District Attorney, and Attorney for Plaintiff. 

"EXHIBIT A." 

Notice is hereby given that pursuant to the statutes in such cases made and 
provided, the Board of Horticultural Commissioners of the County of River- 
side, State of California, between the day of , 189 — , and the day 

of , 189 — , caused to be destroyed and eradicated certain insects and other 

3— HS 



34 HORTICULTURAL STATUTES OF CALIFORNIA. 

pests injurious to fruit, plants, vegetables, trees, and vines, together with 
their eggs and larvfe, upon that certain orchard belonging to Arthur Butcher, 
and particularly described as being" in the said County of Riverside, State of 
California, and known and described as all of lot 233 and fractional lot 236, 
as the said lots are situated on the map of the lands of the Southern California 
Colony Association, said map on file in the office of the County Recorder of 
the County of San Bernardino, State of California. 

That the amount of labor bestowed and materials furnished for the 
purpose of eradicating said pests, as aforesaid, was of the amount of one 
hundred ninety-six and forty-six one hundredths dollars. 

That said owner has wholly failed to pay any part of said sum for the 
eradication of said insects. 

That thereafter and, to wit, on the 9th day of December, 1898, the said 
County of Riverside paid said sum of money for the eradication of said 
insects, pursuant to the provision of the statutes in such cases made and 
provided. 

Wherefore, the County of Riverside claims the benefit of the law relative 
to liens of mechanics and others upon real property, to wit. Chapter 2, Title 
4, Part 3, of the Civil Code of Procedure. 

R. P. CUNDIFF, 
W. F. BUDLONG, 
Horticultural Commissioners. 

State of California, ) 

County of Riverside. ) 

W. F. Budlong, being duly sworn, deposes and says, that he is a Horti- 
cultural Commissioner in and for the County of Riverside ; that he has read 
the foregoing notice and knows the contents thereof, and that the same is 
true ; and that it contains (among other things) a correct statement of the 
demands in favor of the County of Riverside after deducting all just credits 

and offsets. 

W. F. BUDLONG. 

Subscribed and sworn to before me, this 7th day of January, 1899. 

[seal] LYMAN EVANS, 

Notary Public in and for the County of 
Riverside, State of California. 



"EXHIBIT B." 

Office of the 
County Boaed of Horticultural Commissioners, 
Riverside County, California. 

To Arthur Butcher, Owner, Agent, Person in Charge — W. Miller, in Charge: 
In accordance with the law, the undersigned Horticultural Commissioners 
of the County of Riverside, State of California, have caused an inspection to 
be made of your orchard and the trees thereon, located lots 233 and 236, lands 
of the Southern California Colony Association, in the City and County of 
Riverside and State of California, in said county. 

Said inspection was made on the 22d and 23d days of August, 1898, and 
upon said inspection 281 orange trees were found to be infested with red scale 
injurious to fruit and fruit trees. Said insect pests are by law declared to be 
a public nuisance. 

Therefore, in accordance with Section 2 of an Act to promote the horti- 
cultural interests of the State, by providing County Boards of Horticulture, 



HORTICULTURAL STATUTES OF CALIFORNIA. 35 

approved March 31, 1897, you are hereby notified that your orchard and trees, 
described above, are infested with red scale injurious to fruit and fruit trees, 
and that said red scale is a public nuisance, and you are hereby required to 
eradicate or destroy the said red scales or other pests, and their eggs and 
larvae, within ten days of the time of the service on you of this notice. 

Should you neglect or refuse to comply with the requirements of this 
notice, it will be the duty of the County Board of Horticultural Commis- 
sioners to cause said nuisance to be at once abated by eradicating or destroy- 
ing said insects or other pests, or their eggs or larvae. The expenses thereof 
will become a lien upon the above described premises, and an action to fore- 
close the said lien will be brought in the proper court within ninety days 
thereafter, by the District Attorney. 
'Dated this 24th day of August, 1898. 

(Signed:) GEORGE VANKIRK, 
W.B. HUNTER, 
W. F. BUDLONG, 

Horticultural Commissioners. 



In the Superior Court of the County of Riverside, State of 
California. 
THE COUNTY OF RIVERSIDE, Plaintiff, \ 

vs. \ DEMURRER. 

A. BUTCHER, Defendant. ) 

Now comes the defendant, A. Butcher, and demurs to the 
plaintiff's complaint herein on the following grounds: 

I. That said complaint does not state facts sufficient to 
constitute a cause of action. 

II. That said complaint does not, nor does any so-called 
cause of action, paragraph or phrase therein contained, sepa- 
rately or collectively taken together, state facts sufficient to 
constitute a cause of action. 

III. That said complaint is uncertain in this, that it can- 
not be told therefrom on what part of the premises described 
in said complaint the trees or orchard were situated, or whether 
said orchard covered the whole of said premises or only a part, 
and if a part only, what part. 

IV. That said complaint is unintelligible for the same 
reason. 

V. That said complaint is ambiguous for the same reason. 

VI. That said complaint is uncertain in this, that it can- 
not be told therefrom in what manner or to what extent said 
red scale was eradicated, or that it was eradicated at all. 



36 HOKTICULTURAL STATUTES OF CALIFORNIA. 

VII. That said complaint is unintelligible for the same 
reason. 

VIII. That said complaint is ambiguous for the same 
reason. 

IX. That said complaint is uncertain in this, that it can- 
not be told therefrom that the notice mentioned in paragraph 
six of said complaint was ever served on defendant, or how or 
by whom said notice was served. 

X. That said complaint is unintelligible for the same 
reason. 

XI. That said complaint is ambiguous for the same reason. 

XII. That plaintiff has no capacity to sue or maintain this 
action. 

XIII. That this Court has no jurisdiction of the subject of 
this action. 

Wherefore, defendant prays that he go hence with his costs. 

P. FERGUSON, 
Defendant's Attorney. 

In the Superior Court of the County of Riverside, State of 
California. 

THE COUNTY OF RIVERSIDE, Plaintiff, \ 

vs. > JUDGMENT ON DEMURRER. 

A. BUTCHER, Defendant. ) 

This cause coming on regularly to be heard before the Court 
on the nineteenth day of June, 1899, on the demurrer and 
complaint, and cause submitted to the Court for decision. 

Whereupon the Court, after due deliberation, sustained said 
demurrer without leave to amend. 

Wherefore, by reason of the law and the foregoing, it is 
ordered, adjudged, and decreed that plaintiff take nothing by 
said action, that the said action be herein dismissed. 

It is therefore ordered, adjudged, and decreed that the 
defendant, Arthur Butcher, do have and recover from the 
plaintiff, the County of Riverside, his costs and disbursements 



HORTICULTURAL STATUTES OF CALIFORNIA. 37 

herein, amounting to the sum of three and fifty one-hundredths 
dollars. 

Done in open court, this fourth day of November, eighteen 
hundred and ninety-nijie. 

J. S. NOYES, Judge. 

L. A. No. 880. Department Two. July 5, 1901. 
THE COUNTY OF RIVERSIDE, 

Plaintiff and Appellant, , jj^^ISION OF THE SUPREME 

COURT. 

ARTHUR BUTCHER, 

Defendant and Respondent. 

Horticultural Act — Destruction of Scale and Insects — Constitution- 
ality OF Act. — The Act of Legislature of March 3, 1897, entitled "An 
Act to promote the horticultural interests of the State," etc. (Stats. 1897, 
p. 244), was held to be constitutional in the case of Los Angeles vs. 
Spencer, 126 Cal. 670. 

Foreclosure of Lien — Horticultural Act — Notice to Remove Scales — 
Service.— In an action by a county under the Act of March 3, 1897, to 
foreclose a lien for money paid out by plaintiff for destroying certain 
scale and insects found upon the trees in defendant's orchard, the notice 
required to be given by the statute is sufficient where it contains a 
description of the premises, the name of the owner, the amount claimed, 
that it is for labor bestowed and materials in eradicating the insects upon 
the orchard of the defendant; and an allegation in the complaint that 
the notice was served on the person in charge of and in possession of the 
premises is sufficient. A statement in the notice that jilaintiff claimed 
the benefit of the law relative to liens of mechanics and others on real 
property does not violate it; this may be treated as surplusage, and the 
same may be said of a prayer for a personal judgment. 

Horticultural Act — When Lien Accrues — Time for Filing Notice. — 
The right of a county to a lien for money paid for the destruction of 
scales and insects in an orchard, under the Act of March 3, 1897, accrues 
at the time the money is paid, and the notice of lien may be filed within 
thirty days from that time. 

Appeal from the Superior Court of Riverside County — J. S. 
Noyes, Judge. 

For Appellant, Lyman Evans. 
For Respondent, P. Ferguson. 

The court below sustained a demurrer to plaintiff's complaint, 
without leave to amend, and this appeal is from the judgment 
for the ])urpose of reviewing the order sustaining the demurrer. 

The action was brought to foreclose a lien for money paid 
out by plaintiff for destroying certain scale and other insects 
found upon the trees in defendant's orchard, the lien being 



38 HORTICULTURAL STATUTES OF CALIFORNIA. 

claimed under the provisions of the Act of March 3, 1897, 
entitled "An Act to promote the horticultural interests of the 
State by providing County Boards of Horticulture," etc. 
(Stats. 1897, p. 244). 

It is said by appellant that the court below sustained the 
demurrer upon the ground that the Act was unconstitutional, 
and as the court denied the plaintiff leave to amend, it would 
seem that the contention is correct. The point may be 
regarded as settled by this court in County of Los Angeles vs. 
Spencer, 126 Cal. 670, which case was decided a few days after 
the court made the order sustaining the demurrer in this case. 
We regard the reasoning of the court in that case as correct, 
and it is not necessary to further discuss the question. Other 
objections, however, are made to the complaint, which we will 
notice in the order presented. It is claimed that the complaint 
fails to show that proper notice was served upon defendant 
requiring him to eradicate and destroy the scale prior to the 
expense incurred by plaintifl'. The Act provides, in speaking 
of the duties of the County Board of Horticultural Commis- 
sioners: "They shall notify the owner or owners, or person or 
persons in charge or in possession of the said places or orchards, 
* * * that the same are infested with said insects, or other 
pests, * * * and they shall require such person or persons 
to eradicate or destroy the said insects * * * within a 
certain time to be specified. Said notice may be served upon 
the person or persons, or either of them, owning, or having 
charge, or having possession of such infested place * * * 
by any commissioner, or by any person deputed by the said 
commissioners for that purpose, or they may be served in the 
same manner as a summons in a civil action." 

The complaint alleges that the board "caused a notice to be 
served upon W. Miller, in charge of, and in possession of, 
said premises and orchard for the defendant, as his agent, 
requiring said defendant and agent to eradicate or destroy the 
said scale and insects so found upon said trees within ten days 
after the service of said notice." 

A copy of the notice is attached to the complaint as an 
exhibit, and the copy shows that the notice contained fully all 
matters required by the statute. 

We think the allegation as to service of notice sufficient. It 
shows that the person served was the person in charge of and 



HORTICULTURAL STATUTES OF CALIFORNIA. 39 

in possession of the premises. This is all that the statute 
requires. The allegation shows that the notice was served 
substantially as required by the statute. 

It is further contended that the complaint fails to show that 
the notice of lien was filed within thirty days after the right of 
lien accrued. This contention is based upon the fact that the 
complaint shows that the labor of destroying the scale was 
done in the latter part of September, 1898, and that the notice 
of lien was not filed until January, 1899. The statute provides 
that the expense shall be a county charge and the Board of 
Supervisors shall allow and pay the same out of the general 
fund of the county. "Any and all suras so paid shall be and 
become a lien on the property. * * * a. notice of such 
lien shall be filed and recorded in the office of the County 
Recorder of the county in which the said property and 
premises are situated within thirty days after the right to the 
lien has accrued." 

The right to the lien accrued to the county at the time it 
paid the amount. It then became a lien upon the property, 
and not till then. After the lien so accrued the county had 
thirty days in which to file its notice. It is alleged that the 
county paid the amount December 9, 1898, and that it filed the 
lien January 7, 1899. This was within thirty days after the 
right to the lien accrued. 

The notice of lien was sufficient when signed and verified by 
the members of the Board of Commissioners stating that the 
county claimed a lien for the amount of expense. It contains 
a description of the premises, the name of the owner, the 
amount claimed, that it is for labor bestowed and materials 
furnished in eradicating the insects upon the orchard of 
defendant. This was all that was required by the statute. 
In fact, the statute is entirely silent as to the form, contents, 
or requisites of the notice. It simply says a "notice of such 
lien shall be filed and recorded." The complaint shows that 
the notice was filed and recorded. The fact that the notice 
stated that the plaintiff claimed the benefit of the law relative 
to liens of mechanics and others upon the real property did 
not vitiate it. This part of the notice may be regarded as 
surplusage. The same may be said of the prayer for a per- 
sonal judgment. The prayer is no part of the complaint, and, 
in addition to the prayer for personal judgment, it asks that 



40 HORTICULTURAL STATUTES OF CALIFORNIA. 

the amount may be declared a lien, and that the premises be 
sold to satisfy such lien. 

We recommend that the judgment be reversed, and the cause 
remanded with directions to the lower court to overrule the 
demurrer and allow defendant a reasonable time to answer. 

COOPER, C. 
We concur: 

CHIPMAN, C. 
HAYNES, C. 

For the reasons given in the foregoing opinion the judgment 
is reversed, and the cause remanded with directions to the lower 
court to overrule the demurrer and allow defendant a reason- 
able time to answer. 

HENSHAW, J. 

McFARLAND, J. 

TEMPLE, J. 



POWERS OF HORTICULTURAL COMMISSIONERS DEFINED. 

In the Superior Court of the County of Tehama, 
State of California. 

OREGON NURSERY CO., Limited (a Corporation), Plaintiff, \ 

vs. > OPINION. 

R. W. COATS AND A. W. SAMSON, Defendants. ) 

The plaintiff, in January of this year, shipped from the State 
of Oregon into this county a large number of f rait trees — nursery 
stock. 

Believing the defendants were the proper persons to inspect 
said trees, the agent of the plaintiff notified the defendants of 
their arrival. 

The defendants examined said trees and found some of them 
infested with peach-root borers, some with sour sap, some whose 
roots had been frozen, and some with root knot. 

That the trees were so infested and diseased I think is shown 
by a preponderance of evidence. 

Of the total number of trees shipped only a small percentage 



HORTICULTURAL STATUTES OF CALIFORNIA. 41 

were condemned by defendants, and of those condemned only 
a part were destroyed. 

It may be that in inspecting so large a number of trees, the 
defendants occasionally made a mistake, and condemned a tree 
that should have been passed. It would be strange if they did 
not, but the evidence satisfies me that in the main all the trees 
condemned, and particularly all the trees destroyed, were, by 
reason of borers or disease, unfit to sell or plant and had no 
market value. 

Entertaining these views I should, without further discus- 
sion, order judgment for defendant, were it not that a vital 
question still remains to be solved, viz: Were the defendants 
authorized by law to inspect the trees at all, and if so, were 
they authorized to destroy any or all of those condemned? 

Upon this branch of the case I shall express my views some- 
what at length, both because a correct decision of this case 
justifies it and because such discussion may assist the Board 
of Supervisors and County Horticultural Commission in the 
discharge of their duty, with reference to other cases that may 
arise. 

When a Board of Supervisors or any other local board 
attempts to do any act with reference to the property of an 
individual it must be able to show its authority to. do so, by 
some law clearly conferring such power. 

The defendants claimed the right to inspect, condemn, and 
destroy the trees by virtue of holding the official position of 
Horticultural Inspectors for Tehama County. It is true one 
of the defendants claimed to hold the position of Quarantine 
Guardian, but as he testified positively that in what he did 
concerning these trees he did not act as Quarantine Guardian, 
but that in all he did he was acting as inspector, the validity 
of his appointment as such guardian and his powers and duties 
as such need not be considered. 

So far as I am advised there are now in force three Acts of 
the Legislature relating to the protection of the fruit interests 
of the State. 

The first I shall notice is an Act passed in 1883 (Statutes of 
1883, p. 289). This Act provides for a State Board of Horti- 
cultural Commissioners, consisting of nine members, to be 
appointed by the Governor, two from the State at large and 
one from each of seven districts. The provisions of this Act, 



42 HORTICULTURAL STATUTES OF CALIFORNIA. 

SO far as necessary to be noticed at this time, are found in 
Sections 5 and 7. 

Section 5 provides that that State Board, for the purpose of 
preventing the spread of contagious diseases among fruit trees 
and fruit, and for the prevention, treatment, cure, extirpation 
of fruit pests and the diseases of fruit and fruit trees, and for 
the disinfection of grafts, scions, orchards, debris, etc., danger- 
ous to orchards, fruit, and fruit trees, shall make regulations 
for the inspection and disinfection thereof, which regulations 
shall be circulated in printed form among the fruit-growers of 
the State, and shall be published and posted, etc. Said regu- 
lations, when posted in three public places of the county, shall 
be binding on all. 

Section 7 provides that the State Board may appoint as 
many quarantine officers as may be needed to carry out the 
provisions of this Act, whose duty it shall be to see that the 
regulations of the board are enforced and carried out. 

Whether, acting under this statute, the State Board has ever 
adopted any regulations, or printed or posted them, if adopted, 
I am not informed. The court cannot take judicial notice, 
without proof, of its proceedings. 

The next Act to which attention is called is the Act of 1897 
(Statutes of 1897, Chapter 183). 

The first section of this Act provides where and under what 
conditions the Board of Supervisors of a county may appoint 
a County Board of Horticultural Commissioners. It may 
make- such appointment " whenever a petition is presented 
signed by twenty-five or more persons, each of whom is a resi- 
dent freeholder and possessor of an orchard, stating that cer- 
tain or all orchards or nurseries or trees of any variety are 
infested with scale insects of any kind injurious to fruit trees 
and vines, codling moth, or other insects that are destructive to 
trees." 

It is the law of this State that whenever the Legislature 
confers power upon a Board of Supervisors or other board, and 
prescribes the circumstances under which or the manner in 
which such power is to be exercised, the circumstances must 
exist before the board can act at all, and if it act it must do so 
in the manner pointed out by the statute. 

As was said by the Supreme Court of this State, In re 
Grovestreet, 61 Cal. 449: "It was for the Legislature to pre- 



HORTICULTURAL STATUTES OF CALIFORNIA. 43 

scribe, and the Legislature has prescribed, what the petition 
shall contain — until a petition is presented containing sub- 
stantially all that the law declares shall be inserted in a 
petition to initiate the proceedings, the counsel has no power 
or jurisdiction to act." * * * 

The statute says the Board of Supervisors may appoint a 
County Board of Horticulture, first, when a petition is pre- 
sented signed by twenty-five resident freeholders and possessors 
of orchards; and, second, when such petition states that certain 
or all orchards or nurseries or trees are infested with scale 
insects of any kind injurious to fruit trees and vines, codling 
moth or other insects that are destructive of trees. 

The petition presented to the Board asking for the appoint- 
ment of a County Board of Horticulture complied with the 
first of the above conditions. It was signed by twenty-five 
persons having the qualifications prescribed by the statute; 
but it did not, even in substance, comply with the second con- 
dition. It did not state that any orchard or trees in Tehama 
County were infested with scale insects injurious to trees, codling 
moth or any insect destructive of fruit trees. 

All the petition stated upon this vital point was the follow- 
ing: "We are credibly informed and wholly aware that there 
exist throughout this county a great many insects and pests 
of various kinds, and that they are multiplying at an alarming 
rate." 

This is not a statement that any orchard or all orchards or 
trees are infested with codling moth, scale insects, or any insects 
destructive of fruit trees. 

Of course there are insects and pests in Tehama County, but 
the statute said the petition must state that there are insects 
or pests here injurious to fruit trees. 

It will be admitted, I presume, that not all insects and pests 
are injurious to fruit trees. 

As the presentation of a petition containing the matters the 
statute requires was the thing necessary to give the board 
jurisdiction to make any appointment, it follows that the order 
of the board, based upon the above petition, appointing a 
County Board of Horticulture, was void, and from a legal 
standpoint no board was appointed. 

As the Board of Supervisors may hereafter conclude, upon a 
proper petition presented, to appoint a Board of Horticulture, I 



44 HORTICULTURAL STATUTES OF CALIFORNIA. 

deem it not improper to offer some suggestions as to what the 
scope of the authority of such Board of Horticulture will be 
when legally appointed. 

The second section of the Act of 1897 states some of the 
duties of such board. 

When it deems it necessary it shall cause an inspection to 
be made of any orchard or nursery, or trees, plants, etc., and 
if found infested with scale insects or codling moth or other 
pests injurious to fruit, plant or vegetable life, or with their 
eggs or larvae, they shall notify the owner or person in posses- 
sion thereof that they are infested with such pests, insects, etc., 
and shall require such person to eradicate or destroy said 
insects or other pests, their eggs or larvae, within a certain time 
to be specified. 

It then provides that if the owner or person in possession of 
said orchard or trees shall refuse or neglect to abate the pests, 
insects, etc., within the time specified, then it shall be the duty 
of the County Board of Horticulture to cause said nuisance to 
be at once abated, by eradicating or destroying said insects or 
other pests, or their eggs or larvae. 

"The expense thereof shall be a county charge, and the Board 
of Supervisors shall allow and pay the same out of the general 
fund of the county; and any or all sum or sums so paid shall 
be and become a lien on the property and premises from which 
said nuisance has been removed or abated in pursuance of this 
Act, and may be recovered in an action against such property 
and premises." 

The above seems to be the full measure of power of the 
County Board of Horticulture in the matter of dealing with the 
trees or orchards of other persons. 

When we analyze this section we reach the following results: 
The County Board of Horticulture has power to inspect any 
and all orchards and trees in the county, and if it finds them 
infested with scale insects or codling moth or other pests in- 
jurious to fruit, plants, vegetables, trees, or vines, or with their 
eggs or larvae, it shall notify the owner or person in possession 
and require him to eradicate or destroy said insects or other 
pests, or their eggs or larvae, within a certain time to be speci- 
fied. 

If the owner or person in possession of the trees or orchard 
neglects or refuses to abate the same ^ithin the time specified. 



HORTICULTURAL STATUTES OF CALIFORNIA. 45 

the commissioners shall cause said nuisance to be at once 
abated by destroying or eradicating said insects or other pests, 
or their eggs or larvae. 

It will be noticed that no authority is anywhere in the statute 
given to destroy trees or orchards. The only authority given 
to destroy is to destroy the pests or insects. Nothing is said 
about destroying trees. The language is: ''It shall be the 
duty of said commissioners to cause said nuisance to be at once 
abated by eradicating or destroying said insects or other pests, 
their eggs or larviv'^ 

Whether they would be authorized in any case to destroy trees 
would probably depend upon circumstances. It is their duty 
to eradicate or destroy the insects and pests. If a tree or trees 
were so infested with insects or pests, their eggs or larvse, as to 
render it impracticable to eradicate or destroy said insects or 
pests without destroying the trees, in such case I think the 
board would be justified in destroying the trees. 

But it is clear that the statute in no case confers authority 
to destroy any trees except such as are infested with insects, 
borers, or fruit pests. Nor do I know of any good reason why 
such power should be conferred. 

Take the case of trees afflicted with sour sap. All Mdtnesses 
on both sides testify that it is a disease of the individual tree, 
produced by local conditions of soil, moisture, or temperature. 
That it is neither contagious nor infectious. It will not commu- 
nicate to nor infect other trees in the same orchard or nursery. 

This being so, no good reason can be suggested why, if 
commissioners find a tree or row of trees in my orchard afflicted 
with sour sap, they should destroy it or them. It will not 
spread to any more of my trees nor to those of my neighbors, 
and if I want to take care of and try to grow a sick tree I see 
no reason why the State should not permit me to do so. Any 
way, it certainly has not conferred authority upon any one to 
destroy such a tree without the consent of the owner. 

The same rule must apply to nursery stock offered for sale. 
After the commissioners have inspected it and found trees 
afflicted with sour sap and informed the intended purchaser, if 
he is silly enough to plant them he should be permitted to do so. 

These remarks do not apply to trees infested with insects 
and pests injurious to fruit trees. No one should be permitted 
to buy, sell, plant, grow, or keep in his possession trees infested 



46 HORTICULTURAL STATUTES OP CALIFORNIA. 

with insects, pests, etc., that will propagate, spread, grow, and 
infest and destroy the orchards of other people. 

The third section of this Act of 1897 gives the County Board 
of Horticulture power to divide the county into districts and to 
appoint a local inspector for each district. 

The fourth section makes it the duty of the County Board of 
Horticulture to keep a record of its proceedings. 

Acting under these two sections, if the Board of County 
Commissioners, when appointed, desires to appoint local 
inspectors, it should meet as a board and divide the county 
into districts, by section lines or otherwise, fixing the bound- 
aries of each district, and enter it upon the records of its pro- 
ceedings. If it appoints an inspector for each district, it should 
do so at a meeting of the board, and enter the names and dis- 
tricts for which appointments are made, upon the minutes of 
its proceedings required by law to be kept. 

Before leaving this statute of 1897 I desire to make some 
general suggestions concerning it: 

It is obvious that it was not passed expressly, if at all, for 
the purpose of providing for the inspection of nursery trees 
offered for sale. The Legislature had in mind that there might 
be in a county an orchard infested with insects and pests 
destructive of fruit trees, which if not eradicated would spread 
and injure other trees and orchards, and where the owner 
either neglected or refused to eradicate them, thereby endan- 
gering the property of neighbors. It was to force such an 
owner to eradicate such pests and insects, and if he did not, to 
give the County Commissioners power to do it and make the 
expense a lien upon his orchard, that the statute was passed. 

This is apparent from the first section. To get commis- 
sioners appointed a petition must be presented stating that 
certain or all orchards or nurseries or trees are infested, etc. 
The board would have no power to appoint, if the petition 
alleged that all trees and orchards in the county were free of 
pests and insects, but petitioners believed some one was about 
to bring infested trees in from another county or state. 

That the Legislature was legislating for orchards and not for 
nursery trees out of ground is obvious from Section 2, which 
provides that the county shall have a lien upon the property 
for the expense of eradicating and destroying insects and pests. 

After the county officers had condemned a lot of nursery 



HORTICULTURAL STATUTES OF CALIFORNIA. 47 

trees, because infested with root-borers, etc., it would look silly 
for the county to offer such trees at public auction to pay the 
expenses of eradicating the pests from them. 

But however all this ma}'^ be, it is clear that if the Act of 
1897 did confer power upon County Boards of Horticulture 
and local inspectors to inspect and condemn nursery stock 
shipped in from other States, such authority was taken away 
by the Act of 1899, and conferred exclusively upon the State 
Board of Horticulture and the Quarantine Guardians appointed 
by it. 

The rule has been announced by our Supreme Court that 
whenever the Legislature purports to pass an Act dealing with 
the whole of a particular subject-matter, such Act repeals, by 
implication, all former xVcts upon the same subject. 

The Act of 1899 is directed exclusively to the inspection of 
nursery stock shipped into this State from places without the 
State. 

The first section provides that any person who shall bring 
any nursery stock into this State shall notify the State Horti- 
cultural Officer or the Quarantine Guardian of the district or 
county of its arrival, and shall hold the same, without unnec- 
essarily moving the same, for the inspection of such State Hor- 
ticultural Officer or Quarantine Guardian. If there is no 
Quarantine Guardian or State Horticultural Officer in the 
county where such stock is received, it shall be the duty of 
the person having said stock to notify the State Board of 
Horticulture, who shall make immediate arrangement for its 
inspection. 

The third section provides that when any shipment of nurs- 
ery stock brought into this State is found infested with injurious 
insects, their eggs, larvff, or pupa?, or infested with tree, plant, 
or fruit disease or diseases, the entire shipment shall be disin- 
fected at the expense of the owner. After such disinfection it 
shall be detained in quarantine the necessary time to deter- 
mine the result of such disinfection. If the disinfection 
destroys all insects and their eggs, and eradicates all diseases 
and prevents contagion, the trees shall then be released from 
quarantine. (What shall be done with the trees if the disin- 
fection shall not prove a success the statute nowhere states.) 

It was clearly the purpose and intent of the Legislature, in 
passing this Act of 1899, to place the inspection, disinfection, 



48 HORTICULTURAL STATUTES OF CALIFORNIA. 

quarantining, etc., of nursery stock shipped into this State in 
the hands and jurisdiction of a State Board of Horticulture, to 
be by it, or by a quarantine guardian appointed by it, inspected, 
etc., and to take away from the County Boards of Horticulture 
and local inspectors all the authority to inspect, condemn, or 
destroy such imported stock. 

The foregoing are all the laws of the State called to my 
attention or that I have been able to find bearing upon the 
facts and circumstances developed by the trial of this case. It 
is a crude and unsatisfactory mass of legislation upon a very 
important subject. The fruit industry is one of the largest 
and most important in the State, and it would seem that some 
plain, simple legislation upon so important a subject could be 
formulated and passed. 

From this review of the law I conclude: 

1. That by reason of defective petition the Board of Super- 
visors never acquired jurisdiction to appoint a County Board 
of Horticulture, and that its attempt to do so was void. 

2. That defendants were not legally appointed local or dis- 
trict inspectors, because there was no Horticultural Commission 
to make the appointment, and because if there was such a 
board it did not attempt to make such appointment at any 
time when in session as a board, nor did it make any record 
of such appointment. 

3. That County Boards of Horticulture and Inspectors, by 
reason of the passage of the Act of 1899, have no authority or 
power to inspect, condemn, or destroy a nursery stock shipped 
into this State from another State; but the duty and power to 
inspect such a stock is, by the Act of 1899, vested exclusively 
in the State Board of Horticulture and in the quarantine 
guardians appointed by it. 

4. That any one shipping nursery stock into this county from 
any place without the State must, before moving it, notify the 
State Quarantine Officer of the district of the arrival of the 
trees; if there is no State Quarantine Officer for the district he 
shall notify the State Board of Horticulture, who shall appoint 
some one to inspect the trees. 

5. That no power has been conferred either on County or 
State Board to destroy any trees unless they are infested with 
fruit insects or pests, or infested with some contagious or infec- 
tious disease. 



HORTICULTURAL STATUTES OF CALIFORNIA. 49 

That sour sap in a tree furnishes no justification for the 
destruction, as it is neither infectious nor contagious. 

6. If a County Board of Horticulture is appointed by the 
Board of Supervisors, and the county divided into districts and 
local inspectors appointed, then the State Board can appoint 
the members of the County Board and the local inspectors 
State Quarantine Guardians. Then the County Board and 
local inspectors acting as quarantine guardians would have 
authority to inspect the nursery stock shipped into the county 
from without the State. 

7. The evidence shows that the defendants in all their acts 
concerning plaintiff's trees acted in good faith, believing that 
they had been legally appointed and that it was their duty to 
do what they did. 

Because the defendants were not legally appointed and were 
not authorized to destroy the trees I am asked to enter up 
judgment for the full value of a sound merchantable stock of 
trees. 

This I must decline to do. 

The plaintiff is only entitled to the market value of the trees 
destroyed. The evidence is to the effect that the trees destroyed, 
by reason of the presence of peach-root borers, sour sap, 
frozen roots, root knot, etc., were unfit to plant, were worthless, 
and had no market value. 

The measure of the plaintiff's damage is the value in the 
market of the trees destroyed, and no more. 

Although of no value, as the defendants were not authorized 
to destroy them, plaintiff is entitled to nominal damages, fixed 
at one dollar. 

A permanent injunction is asked for. I do not think a case 
is made out for such an order. It does not appear that plain- 
tiff has any nursery stock in this county at this time, nor that 
he will have in the future. Should he bring any in, the defend- 
ants may then be quarantine guardians and have a right to 
inspect, and they may not attempt to inspect if not appointed 
quarantine guardians. 

The findings and judgment will be filed in accordance with 
this opinion. 

JOHN F. ELLISON, Judge. 

4 — HS 



50 HORTICULTURAL STATUTES OF CALIFORNIA. 

In the Superior Court of the County of Tehama, 
State of California. 

OREGON NURSERY CO., Limited (a Corporation), N 

Plaintiff, I FINDINGS OF FACT 
vs. > AND CONCLUSIONS 

I OF LAW 
R. W. COATS AND A. W. SAMSON, Defendants. J 

The above entitled action came on regularly for trial on the 
18th day of June, 1901, A. M. McCoy and John J. Wells appear- 
ing as attorneys for the plaintiff and M. G. Gill and G. H. Chase 
for the defendants. 

Whereupon oral and documentary evidence was introduced, 
the cause argued by counsel for the respective parties, and 
submitted to the Court for its decision. 

From the evidence the Court finds the facts as follows, to wit: 

I. That at all the times mentioned in the complaint the 
plaintiff was and now is a corporation organized under the laws 
of the State of Oregon. 

II. That the defendant R. W. Coats claims to be an inspector 
appointed by the County Board of Horticultural Commissioners 
of Tehama County, State of California, and the defendant A. W. 
Samson claims to be such inspector and also claims to be a 
quarantine guardian appointed by the State Board of Horti- 
culture of the State of California. 

III. That on or about the 19th day of January, 1901, the 
plaintifi" brought into the State of California and into Tehama 
County a shipment of fruit trees of a value exceeding one 
thousand dollars. 

That a portion of said trees were brought to the town of Red 
Bluff and a portion of said trees were brought to the town of 
Corning and a portion of said trees were brought to the town 
of Vina, all within said County of Tehama. 

That plaintiff immediately and within twenty-four hours 
after such arrival notified the defendants and held the said 
fruit trees without unnecessarily removing the same or placing 
them where they might be harmful, that they might be 
immediately inspected by said defendants; that by permission 
of said defendants a portion of said fruit trees, so brought to 
the town of Red Bluff, were removed from said town to a place 



HORTICULTURAIi STATUTES OF CALIFORNIA. 51 

within said county of Tehama, about three miles distant from 
said town. 

IV. That a large number of said trees were infested with 
injurious insects and their larvpe, and infested with tree 
diseases. 

That none of said trees were infested with any species of 
injurious insects, their eggs, larvse, or pupa3, not existing in the 
orchards, vineyards, gardens, or farms of California. 

V. That the said defendants claiming to be such inspectors 
as aforesaid did thereafter inspect said trees situate at the 
several points above mentioned. 

That on making said inspection the said defendants found 
that said trees and many of them were infested with injurious 
insects, their eggs and larva?, and infested with tree, plant, and 
fruit diseases. 

They did not find, nor did either of them find, the said trees 
or any of them infested with any species of injurious insects, 
or their eggs, larvse, or pupte, not existing in the orchards, 
vineyards, gardens, or farms of California. 

That said defendants did notify the agent of plaintiff in 
charge of said trees that the same were infested with insects 
and pests injurious to fruit, plants, vegetables, trees, and vines, 
and with their larvae, but did not nor did either of them require 
plaintiff or its agent to eradicate or destroy such insects or 
other pests, or their eggs or larvee, within any time specified, or 
at all. 

VI. That said defendants, after making said inspection, did 
condemn a large number of said trees as being infested, but did 
not do so without exercising proper discretion and judgment 
nor without just cause therefor. 

That said defendants did not, nor still do not, decline or 
refuse to say what, if any, injurious insects, or what, if any, 
eggs, larvae, or pupae, were found on said trees. 

On January 19, 1901, defendant A. W. Samson gave the 
certificate set forth in subdivision VI of the amended complaint. 

That of the trees so condemned 9 were of the trees inspected 
at Red Bluff, and 374 were of the trees inspected at the town 
of Corning, and 159 were of the trees inspected at the town of 
Vina, 2,318 were of the trees inspected at the point above- 
named about three miles distant from the town of Red Bluff. 



52 HORTICULTURAL STATUTES OF CALIFORNIA. 

That except as to the 2,318 trees above mentioned, the 
defendants did not refuse to allow plaintiff to remove the trees 
so condemned or to allow the plaintiff to use or plant or cause 
the same to be planted. 

Of the trees so condemned and not destroyed (as hereafter 
found) the defendants neither consented nor refused to allow 
plaintiff to remove them from the place where condemned, or 
to use or plant the same. 

That the defendants did not disinfect any of the trees so 
condemned by them. 

VII. That at the time of said inspection and at the time 
said trees were condemned, they were diseased, infested with 
root-borers, sour sap, and root knot, and unfit to plant, and by 
reason of their condition had no market value whatever and 
were not of the value of $476.03, nor of any value whatever. 

VIII. That of the trees so condemned the said defendants 
did, on or about the 22d day of January, 1901, and without 
giving plaintiff or its agent the option whether said fruit trees 
should be removed from the State or destroyed, destroyed 
2,020 in number of said trees by burning them. 

That they destroyed them because they were infested with 
root-borers and sour sap and other diseases of fruit trees, and 
without other cause therefor. ' 

That defendants did not refuse to allow plaintiff to care for 
296, or any number of said trees. That they were exposed to 
the wind and died. 

IX. That the trees so destroyed as set forth in finding VIII 
by burning and exposure to the wind were not of the value of 
$388.14, nor of any value whatever. 

X. That said defendants threatened to destroy all of said 
trees so condemned, but which had not been destroyed when this 
action was begun; but as all of said trees had either died or 
been destroyed prior to the trial of this action, the issue of a 
permanent injunction would be a useless act. 

XL That said defendants were not nor was either of them 
ever appointed inspector by the County Board of Horticultural 
Commissioners of Tehama County, and they were not nor was 
either of them at any time such inspector, and the defendant 
Samson was not at any time mentioned herein a quarantine 
guardian appointed by the horticultural board of the State. 



HORTICULTURAL STATUTES OF CALIFORNIA. 53 

XII. That by reason of the facts above set forth plaintifi' 
has not been damaged in the sum of $476.03, or in any sum 
whatever. 

XIII. That of the trees burned some were infested with 
peach-root borers, which is an insect pest injurious to fruit 
trees and orchards and infectious; but only a small per cent of 
said trees were thus infested. That the others burned were 
affected with sour sap, which is a condition or disease of the 
individual tree, neither infectious nor contagious. 

As conclusions of law from the foregoing facts the Court finds: 
That plaintiff is entitled to nominal damages in the sum of 
one dollar. 

That plaintifi' is not entitled to a permanent injunction. 
That each side should pay its or their own costs. 
Let judgment be entered accordingly. 

JOHN F. ELLISON, Judge. 



POWERS OF COUNTY HORTICULTURAL COMMISSIONERS AND 
STATE BOARD OF HORTICULTURE. 
Opinion of Attorney-General Tirey L. Ford. 

San Francisco, Cal., September 24, 1901. 
Mr. Alexander Craw, State Board of Horticulture, 

Clay Street Dock, San Francisco, Cal.: 

Dear Sir: Your favor of July 8, 1901, received, but owing to 
the press of other ofiicial matters which I had in hand at the 
time of the receipt of your communication, I have only just 
been able to give your letter my consideration. 

You say: "A serious and contagious disease of olive trees, 
known as Bacillus olesc, has been found in several counties of 
this State, introduced several years ago from Europe. There 
is no known remedy for the disease, and the Board desires to 
know (1) if the County Horticultural Commissioners have 
power to order all such diseased trees destroyed, or to destroy 
them, under the last clause of Section 2 of the law of 1897; 
(2) in counties where no County Board of Horticulture exists, 
has the State Board of Horticulture any legal right to cause 



54 HORTICULTURAL STATUTES OF CALIFORNIA. 

the condemnation or destruction of such diseased trees through 
the courts, or otherwise?" 

In reply to your first question, permit me to say that the 
State Board of Horticulture was created by Act of March 18, 
1883 (Statutes 1883, p. 289). The Act was amended in 1889 
(Statutes 1889, p. 89). The amended Act authorizing the 
creation of County Boards of Horticulture is the Act of March 
31, 1897 (Statutes 1897, p. 244). The Act provides for the 
creation of the County Boards of Horticultural Commissioners. 
By Section 2 of said Act it is made the duty of the board to 
cause an inspection to be made of any orchards or nurseries, 
or trees, plants, etc., and if found infested with any pest 
injurious to the fruit, trees, plants, vegetables, etc., or with 
their eggs or larvee, they shall notify the owner thereof to 
destroy the said pests, or their eggs or larvae. 

The Act then reads: ''Any and all such places, or orchards, 
or nurseries, or trees, plants, shrubs, vegetables, vines, fruit, or 
articles thus infested, are hereby adjudged and declared to be a 
public nuisance. * * * It shall be the duty of the County 
Board of Horticultural Commissioners to cause said nuisance 
to be at once abated by eradicating or destroying said insects or 
other pests, or their eggs or larvae." 

After providing for the expense entailed in the destruction 
of the pests, the Act declares: "The County Board of Horticul- 
tural Commissioners is hereby vested with power to cause any 
and all such nuisances to be at once abated in a summary 
manner." 

The remedies against a public nuisance are: (1) Indictment 
or information; (2) A civil action; (3) Abatement. (Civil 
Code, Sec. 3491.) 

A public nuisance may be abated by any public body or 
officer authorized thereunto by law. (Section 3494, Civil Code.) 

Any person may abate a public nuisance which is especially 
injurious to him, by removing or, if necessary, destroying the 
thing which constitutes the same, without committing a breach 
of the peace or doing unnecessary injury. (Section 3495, Civil 
Code.) 

There is a diversity of opinion among the text-writers upon 
the right of a private individual to abate a public nuisance 
from which he sustains no special injury beyond that common 
to the public at large. 



HORTICULTURAL STATUTES OF CALIFORNIA. 55 

Some maintain the position that he has such right. 
1 Hilliard on Torts, 605; 
1 Bishop's Criminal Law, 828. 

While others maintain that he has no such right. 
Wood on Nuisances, 732 et seq.; 
Cooley on Torts, Sec. 46. 

At common law he could do so. 
3 Blackstone's Com., 5. 

In California, the case of Gunter vs. Geary, 1 Cal. 462, sus- 
tains the affirmative of this question, though it does not seem 
to have been again cited in this State to the point. 

How^ever, Section 3495 of the Civil Code, supra, settles the 
question, in so far as this State is concerned, against the right 
of a private person to abate the nuisance summarily, unless he 
has suffered some personal injury. 

Section 3495 of the Civil Code, supra, however, gives a pub- 
lic body or officer this right when authorized by law. 

The question then resolves itself into the following: Is the 
County Board of Horticulture authorized, by law, to summar- 
ily abate that which the law has declared to be a public 
nuisance? 

As stated, the statute makes the infested trees, etc., a public 
or common nuisance. This the Legislature has the right to do. 
County of Los Angeles vs. Spencer, 126 Cal. 670; 
Laiolon vs. Steele, 119 N. Y. 226; affirmed 152 U. S. 133. 

It has given the County Board of Horticultural Commis- 
sioners power to eradicate and destroy the insects, or their 
eggs or larva', and, as stated above, declares " all infested places, 
orchards, or nurseries, or trees, plants, etc., thus infested 
* * * to be a public nuisance." 

The board is then given power to summarily abate the 
common or public nuisance. 

In the absence of anything further, this would be the author- 
ity of law referred to in Section 3495, supra, of the Civil Code. 

In the case of Lawton vs. Steele, supra, the Court, in speak- 
ing of the remedies for the abatement of nuisances, says at 
page 237: "The public remedy is ordinarily by indictment for 
the punishment of the offender, wherein on judgment of con- 
viction the removal or destruction of the thing constituting 
the nuisance, if physical and tangible, may be adjudged, or by 
bill in equity filed in behalf of the people. But the remedy 



56 HORTICULTURAL STATUTES OF CALIFORNIA. 

by judicial prosecution, in rem or in personam, is not, we con- 
ceive, exclusive, where the statute in a particular case gives a 
remedy by summary abatement, and the remedy is appropriate 
to the object to be accomplished." 

In the case of County of Los Angeles vs. Spencer, supra, the 
Supreme Court was considering the constitutionality of the 
Acts here under discussion, and sustained them. After hold- 
ing that the Acts in question were a proper exercise of the 
police power, the Commissioner, at page 674, says: " In this 
connection it may be well to observe that the statute does not 
authorize any injury to, or destruction of property, but on the 
contrary its provisions are beneficial to the very property upon 
which it operates." 

This expression of opinion is mere dictum and unnecessary 
to the decision. The point involved was neither argued nor 
referred to in the briefs in the case. It is true that the scope 
of the Act is '' to promote and protect the horticultural inter- 
ests of the State," and in certain portions of the Act it is said 
that the commissioners shall abate the nuisance by " eradicat- 
ing or destroying said insects or other pests, or their eggs or 
larvae." But, as said in the case under consideration, on page 
673: "It is known that the existence of the fruit industry in 
the State depends upon the suppression and destruction of the 
pests mentioned in the statute." 

In Lawton vs. Steele, supra, at page 238, it is said, in speaking 
of the power of summary abatement: "But the remedy of 
summary abatement cannot be extended beyond the purpose 
implied in the words, and must be confined to doing what is 
necessary to accomplish it, and here lies, we think, the stress of 
the question now presented. It cannot be denied that in many 
cases a nuisance can only be abated by the destruction of the 
property in which it exists. The cases of infected cargo or cloth- 
ing and of impure and unwholesome food are plainly of this 
description." 

Again, at page 239: " But where a public nuisance consists 
in the location or use of tangible personal property, so as to 
interfere with or obstruct a public right or regulation, as in the 
case of the float in the Albany basin (9 Wend. 571), or the nets 
in the present case, the Legislature may, we think, authorize its 
summary abatement by executive agencies without resort to 
judicial proceedings, and any injury or destruction of the 



HORTICULTURAL STATUTES OF CALIFORNIA. 57 

property necessarily incident to the exercise of the summary 
jurisdiction interferes with no legal right of the owner." 

In Batcman vs. Coign n, HI Cal. 587, this general principle 
is referred to as follows: "It is further objected that the pro- 
visions of Section 2524 could not have been intended to apply 
to a work of this character, because the Board of Harbor Com- 
missioners is not authorized thereby to employ an architect, 
which it is argued is, in the essential nature of things, ren- 
dered necessary in the construction of such a building. But, 
where power is given to perform an act, the authority to employ 
all necessary means to accomplish the end is always one of the 
implications of the law, and, notwithstanding the omission of 
any special provision to that end, it was competent for the 
board, in carrying out the purposes of the Act, to employ all 
necessary means to fulfill its requirements." 

If, therefore, injury unavoidably follows the summary eradi- 
cation and destruction of the insects and pests, or their eggs or 
larvae (the thing authorized by statute to l)e done), yet if such 
eradication and destruction are done without wanton or unnec- 
essary injury, there is no legal interference with the rights of 
the owner of the property affected. 

It must be borne in mind, however, that the board will be 
held to a strict account for any unnecessary destruction of 
property, and it will, therefore, be entirely a question of fact 
for them to determine, in each instance, just how far it is nec- 
essary for them to exercise their powers. 

In reply to your second question, I have to say that the Act 
creating and defining the powers of the said Board of Horti- 
cultural Commissioners does not give them the powers con- 
ferred upon the County Board of Horticultural Commissioners. 
Their power seems to be confined to the dissemination of 
knowledge and the disinfection of suspected materials danger- 
ous to orchards and trees, to prevent the spread of contagious 
diseases, and the establishment of quarantine regulations. 
But nowhere is a power given to destroy trees or abate 
nuisances. 

In the absence of said statutory provisions, I am of the 
opinion that they have no such power. 
Very truly yours, 

TIREY L. FORD, Attorney-General. 

By Wm. M. Abp.ott, Deputy. 
5 — HS 



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